{"id":311,"date":"2019-07-30T14:34:52","date_gmt":"2019-07-30T14:34:52","guid":{"rendered":""},"modified":"2019-08-07T11:30:16","modified_gmt":"2019-08-07T11:30:16","slug":"who-covered-employment-laws-7529","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/employment-law\/who-covered-employment-laws-7529.php","title":{"rendered":"Who is Covered by Employment Laws?"},"content":{"rendered":"

Introduction<\/strong><\/p>\n

Labour law in the United Kingdom has evolved over many
\ncenturies, adapting to the various developments
\nand changes in the field that have occurred over time.[1]<\/a> Two of the questions that keep recurring since the history of labour law
\nis, \u2018Who is covered by labour law? Who should be covered by labour law?\u2019 The
\nanswer to the first question is quite straightforward since employees have been
\nthe major subjects of employment law for a long time. The second question,
\nunlike the initial question, goes beyond looking at the current legal
\nprovisions as to who is entitled to labour law rights and seeks to identify the
\npersons who, although not currently covered under labour law, they ought to be covered.[2]<\/a> Today the labour market is
\nchanging and the rate of self-employment
\nis rising[3]<\/a>. There are also innovative
\nforms of work that continue to challenge the established norms. This raises the question whether there are
\npeople who ought to be covered by employment law but are not covered due to the lack of flexibility of the law. [4]<\/a> In the UK, casual workers
\nare denied employment rights due to the claim that they lack on-going contracts
\nof employment.[5]<\/a>
\nThis is not a problem that only affects
\nthe UK. In Canada, for example, agriculture workers are denied the right to
\ncollective bargaining.[6]<\/a> This essay argues that there is a need to extend employment law
\nprotection beyond employees to ensure that vulnerable workers are also protected. The essay suggests that
\nthis can be achieved by creating an
\nintermediate group of dependent contractors to replace workers.[7]<\/a> This will ensure that dependent contractors benefit from the
\nemployment rights that were previously
\nrestricted to employees. The paper
\nfurther looks at the consequences of the introduction of such an
\nintermediate group and particularly the problems that will be solved and those that
\nwill be created by the recommendation. <\/p>\n

Who is
\nCovered by Labour Law?<\/strong><\/p>\n

Currently, whether or not a person is covered under labour law is determined by
\nthat person\u2019s employment status.[8]<\/a> Establishing a person\u2019s
\nemployment status is crucial because it determines the person\u2019s eligibility for
\ncertain statutory rights. [9]<\/a>
\nThere are three major employment statuses namely employer\/employee status,
\nworker and self-employed.[10]<\/a> The law provides different rights to these three groups. Employees
\nare the main subjects of employment law hence they have access to all the
\navailable rights whether provided in statute or common law.[11]<\/a> Self-employed are considered
\nto have the capability to look out for themselves hence no rights are provided
\nexcept basic rights such as the right against discrimination. Workers are in
\nthe middle where they have access to some rights such as minimum wage and the
\nright against wrongful dismissal.[12]<\/a> <\/p>\n

The question \u201cwho is an employee\u201d is important in
\nemployment law because it determines if a person is entitled to a significant
\npackage of rights. Due to the ambiguity in defining
\nwho an employee is, courts have to distinguish between employees and
\nthose who are self-employed.[13]<\/a> <\/p>\n

The courts have over time developed several tests to
\ndetermine whether an individual is an employee or an independent contractor.[14]<\/a> <\/p>\n

One of the tests that is
\nwidely accepted and applied is the control test. According to the test, an employee is an individual who is subject to the command of his
\nmaster regarding the manner he or she should do the work assigned. [15]<\/a>  The increased sophistication of industrial
\nprocesses and the increase in the number of professionals in salaried
\nemployment such as doctors and engineers have, however, made the test
\ninsufficient. [16]<\/a>
\nIn an attempt to modernise the control test, the courts developed the
\nintegration test where the focus is whether a person is fully integrated into
\nthe business of the employer or else remained independent and apart from such
\nbusiness.[17]<\/a>
\nAlthough the test has been useful in dealing with professional and skilled
\nworkers, its disadvantage lies in the fact that it does not define what is
\nmeant by \u2018integration.\u2019 [18]<\/a>The failure to define the
\nterm \u2018integration\u2019 makes the test difficult to apply today especially in light
\nof the changes in employment relationships. [19]<\/a><\/p>\n

Other tests include the economic reality test a person
\nis considered to be an independent contractor if the person is the one who
\nbears the economic risk of the work being
\nperformed.[20]<\/a> There is also the multi-factorial
\ntest where all the factors for and against a contract of employment are weighed to
\ndetermine whether a person is an employee or an independent contractor. [21]<\/a> Lastly, there is also the mutuality of
\nobligation test where the court looks at whether the employer is required to provide work and whether the worker has
\na corresponding duty to accept the work when offered.[22]<\/a> Although these tests are
\nimportant in determining whether or not a person is an employee, they are
\ninsufficient.[23]<\/a>
\nThe reason being is that the employment relationship today is changing and new relationships are emerging which
\nchallenge the traditional views regarding employment.[24]<\/a> Today there are zero hour
\ncontracts where a worker is not obliged to accept work and the employer is not
\nobliged to dictate minimum working hours. [25]<\/a>In light of such changes,
\nit is important for courts to apply several tests and factors when determining whether an employment relationship
\nexists. A similar approach has been adopted in Canada where the courts
\nhave also acknowledged that whether a person is
\nan independent contractor or an employee cannot be determined by
\napplying a single test. [26]<\/a>In Ontario Ltd v Sagaz Industries<\/em>,[27]<\/a> the Canadian Supreme
\nCourt held that there is no single conclusive
\ntest that can be used to determine whether a person is an independent
\ncontractor or employee.[28]<\/a> Moreover, the court held that other than the level of control the
\nemployer has over the worker, other factors have to be considered such as
\nwhether the person provides his own
\nhelpers, the degree of responsibility for management, the degree of financial
\nrisk among others.[29]<\/a> This shows that in light of the changes in the employment
\nrelationship, there is a need for courts to widen the scope of factors to be
\nconsidered to ensure that fair decisions are
\nmade.[30]<\/a>
\n <\/p>\n

Who Should be Covered Under Labour Law?<\/strong><\/p>\n

Due to the changing labour practices, the legal
\ndichotomy between an employee and an independent contractor is now too
\nsimplistic to cover the diverse workforce that exists today.[31]<\/a> The employment law has
\nfor a long time focused more on differentiating employees and independent
\ncontractors that it has ignored the fact that there
\nare more workers who need protection.[32]<\/a> The Employment Rights Act
\n1996 defines a worker as any person who works or worked under an employment contract or any other contract where the person
\nundertook to perform any work or services personally for another person who is
\na party to the contract and who is not a client or customer.[33]<\/a> This means that all employees are workers but not all workers are employees. Based on the definition of a
\nworker, therefore, for a person to be considered a worker there must be a
\ncontract, an obligation to perform work or a
\nservice personally and the
\nservices must not be provided as part of a business where the other party
\nbecomes a client. [34]<\/a><\/p>\n

Workers are entitled to several rights such as the
\nright to a minimum wage, the right to health and safety precautions, [35]<\/a> the right to protection
\nfrom unlawful deductions from salary and the wrongful
\ndismissal among others.[36]<\/a> Workers, however, do not
\nenjoy the additional rights enjoyed by employees such as the right not to be unfairly dismissed, a right to written terms
\nand conditions of employment, statutory maternity leave.[37]<\/a> This is despite the fact that
\nmost of these workers have similar characteristics to employees only that they are regarded as casual workers. Due to the
\nchanging dynamics in the labour market and the diverse workforce which has
\nemerged today, there is a need to ensure that more workers can enjoy the rights
\nenjoyed by employees. [38]<\/a> Today there are employees working under zero hour
\ncontracts and others working under relationships which are different from traditional employment relationships. [39]<\/a>Such employees need the
\nprotection of the employment law. The reason being is that due to the unequal
\nrelationship between the employer and the employee. Since the workers also have
\nan unequal bargaining power compared to employers, there is a need to ensure that more workers are protected under
\nlabour law.[40]<\/a>\n<\/p>\n

A recent review of modern work practices in the UK found
\nthat there is a need to provide a fair balance
\nof rights and responsibilities for workers and employees.[41]<\/a> The increasing casualization of the labour market has rendered
\nmany workers with employee-like characteristics unprotected.[42]<\/a> As a result, it would be
\nprudent to introduce an intermediate category of workers to be known as
\ndependent contractors covering casual and independent relationships.[43]<\/a> This approach would
\nrequire the government to maintain the three-tier
\nsystem of employment status but for those
\nworkers who are entitled to worker rights but who are not employees, a new
\ncategory should be introduced to ensure that that they can also benefit from
\nthe protection of employment law.[44]<\/a> The provision of benefits
\nunder employment law has for a long time been
\nbased on the selective approach as opposed to the universal approach
\nwhere only those employees who pass the tests provided by law can enjoy the
\nbenefits.[45]<\/a>
\nThe introduction of the dependent contractor category will change the approach
\nto one that leans closer to universalism. This
\nwill ensure that workers in relationships that were
\nnot previously recognised as employer\/employee relationships can now
\nenjoy the rights guaranteed to employees. [46]<\/a><\/p>\n

The need to expand the scope of the employment law
\nprotection to workers with employee-like characteristics has also been acknowledged in Canada.[47]<\/a> In McKee v Reid Heritage Homes Ltd<\/em>[48]<\/a>the Court of Appeal in Canada held that case law had developed a
\ndependent contractor category evidenced by economic dependency and exclusivity
\nin the work relationship. The workers
\ncovered under the new category can enjoy the right to reasonable notice before
\ntermination or severance pay.[49]<\/a> Recently in Keenan v Canac Kitchens Ltd <\/em>the Court of
\nAppeal confirmed the existence of dependent contractors and upheld a 26-month
\naward for the failure to give notice of termination.[50]<\/a> <\/p>\n

In order to prevent negative effects on employees who are already covered under employment law, it is
\nimportant that the introduction of the dependent
\ncontractor category be followed by a clear definition in law of which
\npeople fall under this category.[51]<\/a> The definition should be
\nsuch that it covers the more casual employment relationships that continue to
\nincrease today. All those people who are not employees and are also not
\nindependent contractors or self-employed should be
\ncovered.[52]<\/a>
\nIn order to make the change work, it is
\nimportant that courts put less emphasis on personal service or the issue of
\nsubstitution in employment and instead focus more on the aspect of control. Employers
\ninclude the aspect of substitution to deny casual workers employee benefits
\nhence the tests for determining whether a worker
\nis a dependent contractor should be developed to ensure that more casual
\nworkers are covered. [53]<\/a> <\/p>\n

The introduction of this category may overburden employers in
\nterms of extending benefits to dependent workers. Despite this likely
\noutcome, casual workers are in need of protection and this can only be achieved
\nby ensuring that they also enjoy the rights enjoyed by employees such as the
\nright to a termination notice or severance pay.[54]<\/a> <\/p>\n

Conclusion<\/strong><\/p>\n

Employment law has for a long time guaranteed the full
\nprotection of employees while leaving out other workers. Due to the changing
\ntrends in the labour market and in
\nemployment dynamics, it is important to protect
\nmore workers by ensuring that they can also enjoy employee rights contained in statutes.
\nThe introduction of the dependent contractors
\ncategory will ensure that those workers who are in employee-like employment
\nrelationships but are not covered under
\nemployment law can enjoy the rights enjoyed by employees. A clear stipulation of the definition of dependent
\ncontractors will ensure that employers are not excessively burdened and that
\nthe employees who are already covered are not adversely affected by the change.
\n <\/p>\n

Bibliography<\/strong><\/p>\n

Statute<\/strong><\/p>\n