About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

57 Int'l J.L. & Mgmt. 3 (2015)

handle is hein.journals/ijlm57 and id is 1 raw text is: The current issue and full text archive of this journal is available on Emerald Insight at: www.emeraldinsight.com/1754-243X.htm A response to the challenges posed by the binary divide between employee and self-employed Chrispas Nyombi School of Law, University of Essex, Colchester, UK 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. Keywords Employment relationship, Agency, Atypical work, Employment Rights Act 1996, Employment status, Self-employed Paper type Conceptual paper 1. Introduction The conditions of contemporary market economies have brought conceptual forms of labour into dispute. For centuries, this field has witnessed legal-doctrinal debates over the scope of the employment contract, reflecting the changing social and economic landscape. At the centre of these debates, judicial and academic circles sought to conceptualise the emerging disparity caused by the growth in new forms of labour contracts. During the twentieth century, a number of common law tests were developed to oversee the emerging divide between employees and self-employed. However, the rapidly changing nature of labour challenged many of these tests, with new forms of employment such as agency, part-time working and shareholding workers emerging. The impact on areas such as taxation and employers liability under tort compounded the need for reform. Challenges posed by the binary divide 3 International Journal of Law and Management Vol. 57 No. 1,2015 pp. 3-16 D Emerald Group Publishing L ited 1754-243X DOI 10.110OSIJMA-03-2013-0012

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most