For example, the legal status of a worker as an independent contractor or employee is fundamental in determining the rights of a worker, particularly in light of the increasingly employee centric protective legislative framework.
The focus of this paper is to critically evaluate the approach of the judiciary to employee status and in particular to consider the advantages and disadvantages of each test. The conventional approach has been to implement checklist tests to distinguish between independent contractor and employee and it is submitted at the outset that the issue remains contentious particularly in light of the continuous changes in working practices. To this end, it is submitted as a central proposition in this paper that whilst the traditional test of employee status was logical in distinguishing between employee and self-employed; the changing nature of contemporary work arrangements have led to inconsistency in tribunal determinations distinguishing between employee and self employed status.
In turn, the central disadvantage of the judicial approach to employee status is that whilst attempting to frame the test as definitive legal principles; the results have sometimes fuelled uncertainty (Pitt 2007). This is further supported by the earlier empirical study of Burchell et al on “Employee Status of Individuals in Non-standard Employment” (1999), which asserted that “there is concern that the existing classifications fail to reflect the growth of certain flexible or non-standard forms of employment, in particular causal work, zero hour contracts, fixed terms and task employment and freelancing” (Burchell et al, 1999, p.5).
From a statutory perspective, the legal definition of employee is described under Section 230(1) of the Employment Rights Act 1996 (ERA) as “an individual who has entered into or works under……..a contract of employment”. The section 230 definition has been criticised for being