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Admirable gig-worker proposals by Brussels lack reality

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Those of us who work in the employment status world breathe a collective sigh whenever it is suggested that the solution to the employment status problem is implementing an easy test that everyone can follow to ensure workers get the rights they deserve. If only the problem was that easy.

Platform working certainly has its place in the 21st-century working landscape. There are no set hours. You can work when you want, and for how long you like, simply by turning on an app and being registered with the appropriate platform.

However, platform working also has its flaws – because those who are unable to find more secure work can find themselves working 40-hours per week, working via platforms to make a living, and can be switched off at any point.


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Pushing the low paid into forever precarious work is not the “good work” that Matthew Taylor was seeking as part of his plan.

The lack of certainty over future income closes the door to many other opportunities, such as denying someone the opportunity to own a home by securing a mortgage. Does society want this outcome?

When someone becomes an employee, the trade-off for getting employment rights is that the employee is under a “sufficient framework of control” such that the relationship constitutes one of master-servant. That’s how the relevant common law describes it, which stems back 50 years.

The hirer can command the employee, against their will, to work when they want them to, how they want them to, where they want them to, and on what they want them to. In return, the employee gets a guaranteed amount of work offered or gets paid anyway. That’s the 'work-wage bargain' that comes with sensible protections around aspects like unfair dismissal.

In the UK, the case law since the Uber Supreme Court ruling tells us that the contextual backdrop to ascertain whether someone is a 'worker' (the middle ground between self-employed and employee) is the statute itself. The statute overrides “armies of lawyers” who draft contracts denying workers their rights.

While it is a good thing, attending the Supreme Court isn’t a practical way to enforce those rights. We need something else, but what does that something else look like?

Here’s another issue – the statute says that while someone may be controlled, they might still be self-employed if they have their own business undertaking. But, this itself is fraught with issues. Consider the gardener problem.

A chap starts a gardening business by throwing his gardening tools in the back of his car and serving his first client. Is he running a business yet? What if he then grows his client base, to say 10 clients, and provides services to them for many years. You would argue he is running a business. But as he gets older, he decides to slow down and ends up with only one of his clients left. Is he no longer running a business and is now a worker of the one last client he has left?

We need a simple answer to all these questions. However, that still eludes many experts in the sector. No one has the solution for the false self-employment problem that doesn’t accidentally scupper the genuinely self-employed.

One thing that’s true about the long-term genuinely self-employed is that they do not want to be employees. Let’s hope Brussels doesn’t mess that up.

 

Dave Chaplin is CEO of IR35 compliance solution IR35 Shield and author of IR35 & Off-Payroll Explained