The question of whether a work relation is one of employment is often treated as the fundamental issue of labour law. To be characterised as an employee or worker entitles the individual to claim a range of fundamental rights against the employer: working time protections, national minimum wage, unfair dismissal, discrimination protections. It is the principal mechanism whereby those engaged in work are accredited with normative agency, demanding recognition and respect as bearers of rights.
For the last four decades, a steady stream of legal cases have come forwards, raising a multitude of technical legal points: personal work and substitution clauses, the meaning of ‘mutuality of obligation’, the nature of control in work relations.
As new forms of work have become politically salient during different historical periods – homework during the 1980s, casual work and zero hours’ contracts during the 90s and noughties, gig work over the last decade – the issue of employment status has been central both to litigation in courts and to public deliberation on designing regulatory interventions.
But recent engagements with employment status in gig work have failed to give the political dimension of employment status its appropriate due.
The politics of employment status is important because of how the employment contract occupies the intersection between subordination and oppression in the work relationship. On the one hand, it establishes the employer’s prerogative to control the labour process through the constitution of disciplinary powers, and so legally underpins domination and inequality. On the other hand, it provides a public platform for asserting fundamental social rights implemented through employment legislation. In this public function, it operates as a legal mechanism for oppressed groups to assert their rights against the employer.
It is unsurprising, therefore, that the legal question of employment status has also become a political battleground in the modern era. The ‘contract of employment’ has become legal shorthand for the fight for democratic equality by precarious workers seeking respect and recognition in the workplace. This raises the question whether and how a political approach to employment status might differ from a legal approach.
Who is a worker or employee?
This question is disarmingly simple, yet it draws us into some surprisingly deep philosophical waters. Lord Wedderburn once famously described the approach of the English courts as based on the ‘elephant test’ – that is to say, it is impossible to define with certitude, but we know one when we see one.
Of course, there are things called elephants in the world. Scientists could no doubt agree on a series of genetic tests in order to identify one definitively, if only to provide scientific confirmation for our common-sense intuitions having seen a big grey quadruped with a trunk. This is what Ronald Dworkin might describe as a ‘natural kind’ concept or category.
As a discipline, labour law has often been in the grip of such scientism. Its attraction is no doubt connected to certain virtues associated with law and legal systems, based on the value of the rule of law. Rules and legal judgments should be clear, certain, predictable, and prospective. A dose of scientific precision in identifying employees/workers supports those ‘rule of law’ values.
In a classic of worker-protective labour law, Davies and Freedland’s Labour Law: Text and Materials, the authors propose an economic frame of reference for developing the judicial approach to employment status. An economic analysis of the distribution of risks and incentives in work arrangements could provide a “better chance of leading to a scientific rather than intuitive and impressionistic method of classification”. This economic approach would be “a relatively objective, meaningful and informative way of distinguishing” employees from independent contractors.
This quest for scientific objectivity, and the elimination of discretionary human judgement, is a thread that has run through scholarly reflections on employment status during the modern era.
Whether someone is an employee or worker and so entitled to certain statutory rights is a legal question. Indeed, it is often treated as the preeminent legal question in labour law. It is also a political question. When precarious workers – homeworkers, casual workers, gig workers – go to court to seek recognition as employees or workers, this is a political act. Beneath the legal technicalities is an assertion of one’s status as a bearer of rights under conditions of democratic equality. Could any legal question be more political than that?
What does it mean to think politically about employment status?
In their ground-breaking book Hegemony and Socialist Strategy, Ernesto Laclau and Chantal Mouffe developed an account of the ‘political’ in social democratic theory and practice. According to Laclau and Mouffe, the future of social democracy needed to be understood as a struggle to expand and deepen the principles of democratic equality. The social democratic project is furthered where the principle of democratic equality is taken beyond the state into the economy and civil society.
This is carried forward by the mobilisation of groups. This mobilisation requires a shift in consciousness, so that certain relations of ‘subordination’ come to be seen as sites of ‘oppression’. This occurs “when the democratic discourse becomes available to articulate the different forms of resistance to subordination” so “that the conditions will exist to make possible the struggle against different types of inequality.”
This struggle is formulated as an assertion of rights against the oppressor, and a demand that those rights are respected under conditions of democratic equality.
This account of the political provides an important new perspective on the issue of employment status in labour law. Laclau and Mouffe’s framework thus points to the employment contract as a key site of the ‘political’. But what does it mean to think politically about legal categories such as the contract of employment?
First, the political is concerned with the creation of collective identities, and these identities reflect a distinction between ‘us’ and ‘them’. Conflict is ineradicable from the political. The determination of the frontiers of identity is central to employment status, whether it be at the boundary between ‘employer’ and ‘employee’, or the boundary between ‘employee’ and the ‘self-employed’.
Furthermore, every construction of a political identity is an act of power that has exclusionary effects on those who are positioned on the outside. The division between labour market insiders and outsiders has been one of the central and perennial themes of employment status. Courts can be ill-equipped to deal with collective identities. The court is focused on the individual dispute between the parties. Courts struggle to adjust to the more collective idea of ‘gig workers’ or ‘homeworkers’ or ‘zero hours’ workers’ with the same ease, even though this is how identities may be conceived by the workers themselves.
Second, the frontiers of political identity should always be regarded as contingent rather than naturalized. There is no objective essence to the constitution of identity, and the boundaries of the political should always be open to contestation and challenge.
Admittedly, politics necessitates decisions, and decisions require the specification of an order. Labour law could not dispense with relational boundaries and ‘personal scope’. Yet those allocative decisions should never be regarded as final and conclusive. There must always be legal and political mechanisms that enable the boundaries of inclusion/exclusion to be open to contestation and challenge by new groups seeking democratic equality.
In particular, this should make us particularly suspicious of legal discourses that fixate on ‘clarity’ over categories and the distinctions between them. This often conceals a fairy tale belief that there is a perfect boundary awaiting discovery in the world, one that could quieten discord definitively.
Third, Mouffe is suspicious of theories of liberal legalism that operate as forms of closure to stifle political conflict. She argues that there is now an increasingly “marked tendency to privilege the juridical field and to expect the law to provide the solutions to all types of conflict. The juridical sphere is becoming the terrain where social conflicts can find a form of expression”.
Liberal legalism privileges the judiciary as constitutional actors. Deep political conflicts are reconfigured as interpretive disputes over the meaning of legal concepts. The privileging of courts in agonistic democracy is problematic because it fails to provide a democratic outlet for what we might call ‘the passions’ as vital constituents of political engagement.
For example, Lizzie Barmes has drawn attention to the “chilling, eerie quality to the bland recounting” of narratives of precarious and marginalized work in judicial discourse. This moral sanitization of judicial language, and the translation of political claims (e.g. ‘respect me as an agent, respect my rights’) into legal categories (e.g. ‘did this break in employment constitute a rupture to ‘continuity’ or was it a ‘temporary cessation’ in accordance with the statutory definition?’), reflects the distinctive demands of legal reasoning in public courts.
Where there are legal disputes, there will be a need for courts and judicial determination. However, agonistic politics would also make space for political approaches to contested questions like employment status. These political approaches will make space for the expression of anger, indignation, and the struggle against oppression. The political dimension of employment status means that a range of political institutions, in addition to courts, should have an important role in setting (and resetting) the frontiers of employment protection. This process should never be viewed as the exclusive preserve of the courts. And no boundary should ever be viewed as final, definitive and conclusive.
Taking a political approach to the employment status of ‘gig’ workers
The gig economy represents an excellent example of where the dynamics described above are on show in current debates about employment status. There is ongoing litigation around the legal category of ‘worker’ in both Deliveroo and Uber, with Uber set for a high noon showdown in the United Kingdom Supreme Court in July 2020.
The legal issues in these cases are in fact rather distinct, reflecting important differences in the contractual arrangements and the nature of the rights being claimed. For example, the appeal in Deliveroo is concerned with substitution clauses, the obligation of personal work, and the fundamental right to collective bargaining under the ECHR. None of these issues arise in Uber.
There has also been significant political focus on employment abuses in the gig economy. In October 2016, Matthew Taylor was appointed to lead a review of employment practices in the modern economy, and this led to a report published in July 2017. Much of this report was concerned with problems of enforcement, especially in gig economy work, and it produced a series of proposals which included proposals on employment status.
The Taylor review provided an opportunity to think politically about employment status, and to do something distinctive on employment status that courts are not able to do. But in the end the reasoning in the review was depoliticized, no doubt reflecting the depoliticized constitution of the review members, among which there were no trade union or worker representatives.
Taylor also shows a startling faith in technology to deliver ‘clarity’ on the issue of employment status, with the Review recommending the development of ‘online tools’ to assist individuals in discovering the legal identity of the working arrangements. In this respect, Taylor represented a further iteration of the lure of scientism in determining employment status
But this presents the employment status characterization as a technical exercise. Where next from here? We might develop numerical values to attach to specific features of the work arrangements, and an overall score for the employment status threshold. Its effect is to depoliticize the question of the employment status enquiry, which must be understood as a creative political act in determining which of us has employment rights, and which of us does not.
Dressing this up as a technical legal enquiry, to be assisted by new technology, obscures the politics of employment status. This scientism is also reflected in the drive for a comprehensive and complete statutory definition of worker status in law, one that eradicates any scope for human discretionary judgement or uncertainty.
In the recent institutional engagements with gig work, it is remarkable how political perspectives on employment status – specifically, which workers or work relations should have their normative agency respected through the provision of enforceable rights – have been displaced by legal perspectives – in other words, the most rational restatement of the existing corpus of norms on employment status.
If the purpose of the exercise was simply law reform, it would have been far better for those questions to have been allocated to a body with the relevant expertise, such as the Law Commission or even a Royal Commission with appropriate membership and logistical support. The Taylor Review was not well placed to do this job, and this showed in many of the resulting proposals.
Taylor’s fixation on ‘clarity’ reveals a depoliticised understanding of what is fundamentally at stake in the employment status debates, and it is the modern version of the scientism that has proved so captivating to the legal mind.
Clarity can be achieved in many ways, and it could be consistent either with the contraction or expansion of the protective boundary of labour law. And it is precisely this contraction or expansion thatconstitute the real political question here – how should we construct collective identities that confer rights-based agency on groups that warrant social protection?
The obsession with a statutory definition and ‘clarity’ may also be based upon a misguided view that political contestation around employment status can be eliminated once and for all by a clever draftsperson.
Of course, there must be decisional closure from time to time on ‘who is in’ and ‘who is out.’ Yet a political vision of employment status reminds us that no determination of this kind can be treated as final and conclusive.
The ingenuity of capital to transform itself will always be matched by the ingenuity of new ‘outsider’ groups in the labour market who assert their normative agency and demand their rights. This dynamic runs through the landmark employment status cases over the last forty years.
Such conflict is healthy in a pluralistic democracy. Employment status will always be a site of political contestation, and any such boundary should be regarded as contingent and open to political challenge.
Labour lawyers are right that employment status is of fundamental importance in the regulation of work. But such is its importance, it should not be left to the lawyers and economists to sort out. Employment status involves the creation of boundaries, limits, and exclusions. It is a pre-eminently political exercise. Taking this political dimension seriously invites a set of questions about democratic voice for workers, and the role of political institutions and representative trade unions in determining that boundary.
In the end, scientism in employment status is a confidence trick. Judges and legislators are not hunting elephants, designing biometric protocols, or formulating differential equations to pinpoint an objective economic reality. They are engaged in political acts with exclusionary consequences for those who are positioned outside the community of right-holders.
The implications of the political approach to employment status are striking. We must stop individuating the enquiry into ‘who is an employee?’, as if that necessitated a discrete enquiry, contract-by-contract, in court-centred litigation. To ask ‘who?’ is to view employee or worker as a form of personalised status. That conveniently obscures the structural and collective role of employment status as a political boundary that brings in its wake both inclusionary and exclusionary effects. It follows from this that the political enquiry requires a range of other political institutions other than courts to participate in the constitution of that boundary – legislators, public inquiries, citizens’ assemblies, select committees, Parliament. Most importantly of all, it is now time to include workers and trade unions in this political dialogue. Since these individuals and groups bear the heaviest material consequences of exclusion, it is remarkable how peripheral their voices were in the Taylor review.
Alan Bogg is Professor of Labour Law at the University of Bristol