A response to the challenges posed by the binary divide between employee and self-employed

Abstract

Purpose – The purpose of this paper is to examine the nature of the legal relationship tying workers to employers. It explores how the individual who is categorised as an employee is distinguished from a self-employed or independent contractor or a worker. The common law tests for classifying employment status are analysed against a backdrop of emerging research literature. Recommendations for reform are provided, drawing from the work of prominent scholars such as Mark Freedland and Simon Deakin. Design/methodology/approach – The paper reviews court decisions and examines arguments raised in relation to the binary divide between employed and self-employed. The paper is largely conceptual. Findings – This paper has shown that divergence between law and realities of employment still puzzle modern law reformers and judges alike. The common law test have proved to be inadequate and new solutions have been recommended. One of the suggest solutions is to import the doctrine of good faith into the tests. Originality/value – The paper makes recommendations that will further refine and clarify the employment relationship in a bid to create a more inclusive “labour law” capable of protecting a wider range of atypical and vulnerable work relations. This paper will inform managers on the challenges in relation to classification of employment status brought about by the growth in atypical work.