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Employee or Worker?
One of the most important legal distinctions is that between an employee and an independent contractor. It has long caused unexpected upsets in otherwise amicable commercial relationships. This is not an area which stands still for long, and this law-byte raises two questions which now increasingly need to be taken into account.
First, legislation more and more seeks to pass by the distinction entirely. If the law at issue relates simply to a worker, than that person can be a worker whether or not they are 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. Does an employer have to keep records of the hours worked by his staff in other employments. It seems so.
Other significant examples of 'worker' legislation are that relating to the minimum wage, and also to Health and Safety at work.
It is a trend which can only be expected to continue, and the 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 the economics changed fundamentally.
In the other direction goes the case of Express and Echo Publications Ltd v Tanton (Times 7 April 1999). Here a driver claimed he had been an employee, and had rights accordingly. After the to and fro of 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 an alternate, somebody else, to carry out his work if, for whatever reason, he did not. This meant that the contract could not be described as a personal one. Although it looked like an employer/employee relationship in every other sense, this single element made that impossible. As in many other areas of law, questions which any sane person would have expected to have been resolved have not in fact previously been resolved by the law.
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