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129 L. Q. Rev. 380 (2013)
The Notion of the Employer

handle is hein.journals/lqr129 and id is 380 raw text is: THE NOTION OF THE EMPLOYER Jeremias Prassl Fellow of St John s College, University of Oxford Introduction The contract of employment is the central gateway to employment rights in English law.' In determining whether a relationship falls within its scope, the courts have traditionally focussed on analysing whether an individual can be classified as an employee. As a result, the notion of the employer has been neglected in both judicial and academic discussions,2 leaving it inchoate and built on unquestioned or even unstated assumptions. This article sets out to elucidate the notion of the employer by identifying two contradictory conceptions inherent in the current approach, and to show how the resulting tension increasingly leaves workers without recourse to legal protection. A unitary conception, first, assumes that the employer must always be a single entity: the counterparty to the employee in the contract of employment. A multi-functional conception, on the other hand, defines the employer by reference to the exercise of various functions or roles. A particular function of being an employer in this sense is one of the various actions employers are entitled or obliged to take within the open-ended scope of the contract of employment. With the advent of multilateral work settings, from employment agencies to complex corporate group structures, the exercise of such functions is increasingly shared between multiple entities, with the result that no responsible employer can be identified. The article is structured as follows. A first section addresses the apparent absence of case law defining the notion of the employer, suggesting how decisions on the classification of workers may be used instead for that purpose, given the close contractual link between the parties. Section two then charts the development of the unitary conception, showing how the employer has become understood to be constituted as a single entity in all circumstances.' As will be seen, to some extent this is rooted in the anthropomorphic notion of the master, a logical extension of the very origins of the employer-employee relationship in the law of Master and Servant.' A single entity definition is furthermore intrinsic to the law's perception The author is grateful to Professor Mark Freedland, Professor Simon Whittaker and Dr Katharine Grevling for comments on a previous draft. The usual disclaimers apply. Employment Rights Act 1996 s.230. 2 With the notable exception of H. Collins, Ascription of Legal Responsibility to Groups in Complex Patterns of Economic Integration (1990) 53 M.L.R. 731; S. Deakin, Commentary. The Changing Concept of the 'Employer' in Labour Law (2001) 30 I.L.J. 72; J. Fudge, The Legal Boundaries of the Employer, Precarious Workers, and Labour Protection and P. Davies and M. Freedland, The Complexities of the Employing Enterprise in G. Davidov and B. Langile (eds), Boundaries and Frontiers of Labour Law (Oxford: Hart Publishing, 2006). 3 The present use of the word unitary is not the only one seen in the literature. In Deakin's work on the evolution of the contract of employment, for example, unitary denotes the single status that has emerged for all employees, distinct from that of independent contractors: S. Deakin, The Evolution of the Contract of Employment, 1900 to 1950-the Influence of the Welfare State in N. Whiteside and R. Salais (eds), Governance, Industry and Labour Markets in Britain and France The Modernising State in the Mid-Twentieth Century (London: Routledge, 1998), at p.225. S. Deakin and F. Wilkinson, The Law of the Labour Market (Oxford: Oxford University Press, 2005), at p.43. 380 (2013) 129 L.Q.R. July c 2013 Thomson Reuters (Professional) UK Limited and Contributors

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