Raphael Prais on Taylor Review



Raphael Prais, employment law specialist at Markel Law, gives his take on whether the Taylor Review is right to suggest a new 'dependent contractor', category of employment.

I'm going to start with the answer – yes.

Before and during the work on this review, both judicially (in the tribunals and courts) and in the media, one topic received much scrutiny; how do you decide whether casual workers, especially those in the 'gig economy', should be considered an employee, self-employed or a worker?

You'll have noticed that third category – worker. In terms of the working relationship, workers are somewhere between employees and the truly self-employed, especially in terms of the control exerted by the employer. In terms of employment rights too, they sit somewhere in between; they cannot claim unfair dismissal, but they are entitled to minimum wage.

And a related question often followed; is there any point in this vague third term? It is very confusing. Can't people either be employed or self-employed?

Given the myriad ways that people work, it will always be hard, if not impossible, to provide a bullet-proof definition of employment. Furthermore, given that there are many reasons for defining employment, it would be strange if one definition was suitable for all purposes.

Take a worker who is not controlled enough to bring an unfair dismissal claim – how does that affect minimum wage, whistleblowing and discrimination? Arguably, there should be far more than three categories. In fact, there are at least five, as the meaning of employee is more nuanced for whistleblowing and discrimination.

The term worker has always been difficult to define. In colloquial use, it doesn't point one way or another – both employees and the self-employed work!

In some court and tribunal judgments, the term worker simply lowered the 'pass-mark' – rather than workers working in a qualitatively different way than the employed. The February 2017 Court of Appeal decision of Pimlico Plumbers v Smith, however, stressed a particular aspect of working as a 'worker' – they provide their services as part of an undertaking carried on by someone else. In other words, they work on another's platform.

In my opinion, the term 'dependent contractor' gives the impression of someone working in this manner, independently but through a platform. For that reason, it's a useful suggestion.

Is it a radical suggestion? Certainly not, and the review doesn't suggest otherwise. The review suggests that a third category, like the current worker, is retained but its meaning clarified. I agree.