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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:

A response to the challenges
posed by the binary divide
between employee and
Chrispas Nyombi
School of Law, University of Essex, Colchester, UK
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
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.

posed by the
binary divide

International Journal of Law and
Vol. 57 No. 1,2015
pp. 3-16
D Emerald Group Publishing L ited
DOI 10.110OSIJMA-03-2013-0012

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