Matthew Taylor’s “Good Work” report also grabbed the headlines this summer. To some it was seen as not going far enough, to others it was seen as going too far and seeking to interfere with the right for parties to choose how they work. What is clear is that this is a topic that we will never be able to satisfy everyone.
Taylor’s remit did not extend to the tax arrangements, which often dictate considerations around how flexible workforces are structured, but he still made limited recommendations as to how the two may need to work together. We agree that, unless the two are aligned, it seems unlikely employers and those that work for them will have absolute clarity on rights or obligations.
What is really interesting…
For us, the most interesting part of the report is not the proposal to codify the test for employment status or the rebranding of “worker” to “dependent contractor” status – which would make control the dominant test and not whether a person can provide a substitute to do the work (often an elaborate charade) – but the report’s chapter on the future of work.
In the US 35% of all workers work on a “gig economy” basis with no real job security. In a recent Employment Lawyers’ Association conference it was reported that 45% of all UK “employment” growth since 2006 has been on that basis. What is clear is the need to balance the flexibility required by employers and those who work for them, with the risk of abuse and uncertainty for those doing such work. That is likely to need greater intervention, but how to give the protections necessary with the world of work changing far quicker than any laws is the conundrum?
Employed, self-employed or a worker?
What the Uber, Pimlico Plumbers, Addison Lee and other reported cases have shown is how heavily fact dependent the tests for whether someone is employed or is a worker or is truly self-employed are. The judges are adopting the approach of looking at the relationship overall and using the “if it talks like a duck, walks like a duck, it is a duck” approach based on an analysis of all of the working arrangements in place.
What is really important about the Taylor report is that the Government actually does something with it. As a nation there is also a benefit of getting the tax and the employment law considerations clarified. There seems sufficient groundswell from all sides to ensure that many of the aspects the Taylor report are actioned, but don’t expect change or clarity overnight. Our concern is that the likely focus in relation to the Brexit negotiations may mean that, like the other reports that have gone before it, the report may sit and gather dust for some time.
Implications for employers
If your business is based on “non-standard” workforce arrangements, then you will continue to need to have close scrutiny to the arrangements and understand the different worker considerations for employment rights, statutory sick pay, NMW, working time, whistleblowing and discrimination considerations. For many short term roles, given the two year qualifying period for unfair dismissal, the increased certainty that being an employee brings for both parties in fact means that for many local employers that is currently the best practical solution for managing short-term or flexible staffing needs.
For more information on how we can help your business, please contact Chris Maddock on 0191 211 7919.