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The thing about one-stop shops is that if they do not stock what you want, they become next best thing to useless. Anyway, welcome to the government’s new Guidance on Employment Status, expressly billed in the accompanying press release as meeting all your worker status needs in one handy document.
In fairness to the government, it is only responding to popular demand. Almost the only consistent output from the 64 questions in its 2018 Consultation on employment status is a despairing cry from all those who responded (from individuals to unions to employers to lawyers) for a greater degree of certainty around who is a worker and who is not. After all, much hangs upon that question – entitlements to pension rights, holiday pay and the minimum wage on the one hand, for example, and protections from discrimination or under TUPE on the other. Gig economy-driven case law over the last six years or so has shown that it is easily possible for employers to lose sight of the line between worker and full self-employment and wholly unknowingly rack up liabilities potentially posing an existential threat to their business. A clearer set of rules about that line would just have to help.
However, while everyone wanted that clarity, there was no consensus on what it should be. Some respondents to the Consultation favoured codification of the question, some sought a statutory definition or more mechanical box-ticking exercise, and some not. Some saw the question as one of social engineering, protecting the more vulnerable and dependent workers, while others were accused of looking for ways in which employers could side-step those protections, finally confident in the knowledge that they would not later be challenged in the Employment Tribunal. In the end, some four years after the initial Consultation, the government’s main responses as published in July are three-fold.
(a) that “now is not the time” to try to square the circle between employment and tax status, that one remaining firmly on the too-difficult pile for the time being;
(b) that the research on which the conclusions are based was done pre-pandemic and so is not necessarily reflective of the labour market in 2022 anyway; and
(c) that when it comes to determining worker status, “the weighting of each factor will vary depending upon the relationship in question and is a judgement based on the whole picture of the individual case“. That is of course exactly what the position was already and the root of the whole problem. Contrary to the bright assertion by the Business Minister in the press release that “Today we are tidying up the rules“, the Guidance says in terms that it does not change the law. In fact it doesn’t change anything. It leaves employers still wrestling with all the same uncertainties at the margins, still facing the same debates around whether these are issues of broad principle or miniscule detail, still up for argument the same questions of whether a contractual right or freedom is unused because it isn’t real at all or is just commercially unattractive. We do not have any greater idea of what will count as financial dependence or integration or as the individual operating their own trade or business, or of what the employer is supposed to do where those indicators wax and wane over a period and/or between individuals carrying out the same basic function.
On the other hand, what we do have is some political soundbites around “unscrupulous employers” and “building back better“, a cheap post-Brexit jibe about unemployment rates in Europe and the particularly fatuous suggestion that requiring employers to provide a Day One statement of terms of engagement to workers will help them work out whether those individuals are workers in the first place.
In this particular one-stop shop, therefore, you will be able to find some dried-goods lists of rights-per-status and a stale collection of the factors to be taken into account in determining that question, but in the Fresh Produce section, sadly but perhaps predictably, the shelves are basically empty.
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