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Employees and Independent Contractors
One of the most important distinctions in employment and other areas of law, is that between an employee and an independent, or self-employed contractor. It has long caused unexpected upsets in otherwise amicable commercial relationships. This is not an area which stands still for long, and we raise here two questions which now increasingly need to be taken into account.
First, legislation now, more and more, seeks to pass by the distinction entirely. If the law relates simply to a 'worker', then that person can be a worker whether or not he is an employee or an independent contractor. This applies, for example, in new legislation regarding working hours. Workers can include a wide range of individuals previously outside such protection. Does a volunteer agency now have to keep records of the hours worked by its volunteer staff, not only for that agency, but also whilst working as a cleaner in a local office, or as a dinner lady at a local school?
Another significant example of such 'worker' legislation is that relating to Health and Safety at work.
This is a trend which can will continue, and its effects may be far reaching. Many industries in our economy survive on the basis that people work independently. As these uncertainties increase, such industries will find the uncertainty is at best unhelpful, and that their economics are changed fundamentally.
In the other direction goes the case of Express and Echo Publications Ltd v Tanton (Times 7 April 1999). A driver claimed he had been an employee, and that he had rights accordingly. After the to and fro before the Industrial Tribunal and the Employment Appeal Tribunal, the Court of Appeal held that he was not an employee. A simple clause in his contract made that impossible. He was required to arrange for somebody else, an alternate, to carry out his work if, for whatever reason, he was unavailable. This meant that the contract could not be described as a personal one, it did not insist that it was he who carried out the work. Although it looked like an employer / employee relationship in every other sense, this single element made that impossible. He was self-employed.
In another case, the Court of Appeal held that a pupil barrister was not a worker for the purposes of minimum wage legislation, since the relationship between a pupil and her pupil master was not sufficiently that of employer and employee, for her to be a worker. I must admit that I found the reasoning unconvincing. (NOTE: This was reversed on appeal - I still found it unconvincing . . . some people . . . )
As in many other areas of law, questions which any sane person would have expected to have been resolved many years ago, have not in fact been resolved by the law. The only thing I can say with crtainty is that if I were on the bench in the Court of Appeal, things would be rather worse.
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