07 June 2017

Sonia McKay, Professor of European Socio-Legal Studies at the Working Lives Research Institute, London Metropolitan University

Universality of rights ought to be a fundamental principle in law so as to protect all workers, no matter what type of contract they have. Employers should not be able to avoid their obligations under employment law simply by defining some groups of workers in such a way so as to be excluded from employment rights.

The proportion of workers now defined as ‘self-employed’ has risen. A report by the Office for National Statistics (ONS) shows that the self-employed now number more than 4.6 million (2015) up from 3.8 million (2008), with a worrying growth between the years 2001 and 2015 of 88% among part-time workers. The growth of self-employment has been particularly harmful for young workers who have been forced into jobs in the "gig" economy and classified as ‘self-employed’ because there is no other form of work available. The ONS report notes that such young workers:

‘display a greater degree of dissatisfaction with their part-time status and appear to have come directly from unemployment – possibly indicating a choice made under economic hardship.’

Universality demands that:

• Full employment rights should be enjoyed by all workers, including those whose employers attempt to categorise as ‘self-employed’. If you work for an employer and have to follow its instructions then you should have all of the statutory protections which the law offers including: the right not to be unfairly dismissed; the right to maternity, paternity and parental pay and leave; the right redundancy protection; equal pay; and the right to protection against discrimination;
• The distinction between those defined as ‘employees’ and those defined as ‘workers’ should end. All those who work for an employer should be defined as workers enjoying full employment rights with a presumption, for the purposes of employment law, that they are workers;
• Temporary agency work has also been on the increase and there are now around one million agency workers. A report by the Resolution Agency found that agency workers earn on average £2.57 an hour less than non-agency staff. Hiring workers through agencies allows employers to pay less and to exclude agency staff from employment rights. There should be a right of agency workers to take claims for employment rights against both the agency and any user of their labour. This would mean that agency workers would no longer be excluded from employment protection simply because they do not know who their employer is.
• Employers also try to avoid their employment obligations to workers by hiring them for short periods with breaks in service, which in turn deny them statutory employment rights that apply from the first day of employment and are calculated on length of service. Instead, there should be a presumption of continuity of employment whenever a worker works for the same employer, even if there are gaps between periods of work. This would mean that workers who are employed as seasonal workers or are taken on only when there is a surge in demand for labour would continue to build up employment rights each time that they worked.
• Sectoral Collective Bargaining (as advocated by the Manifesto for Labour Law and adopted by the Labour Party) should be re-introduced. Through this process, unions and employers in each industry negotiate a collective agreement binding on all employers and workers in the industry. This agreement sets minimum pay, terms and conditions and could also stipulate the kind of secure employment which is acceptable in the industry and deal with issues like continuity between engagements, variable hours, use of agencies, and a dispute resolution mechanism to deal with any disputes.

While these proposals in and of themselves will not end the inequality between worker and employer, they will provide a more equal playing field and, importantly, will end the growing discrimination which has been the result of employers switching workers on to more precarious forms of work.