Labour's commitment to redefining employment status: a job for the lawyers or a workforce revolution?

What's the difference between an employee and a worker? One wears uniform, the other wears plain clothes. One comes to the office party while the other stays home. You know it when you see it. None of the one-liners you can come up with about how to grasp the difference between an employee and a worker feels convincing because, not only is it complicated, the distinctions often seem nebulous and ridiculous. The Government recently shelved the idea of redefining worker status, opting instead to publish new Acas guidance which effectively says it's complicated and refers to case law.

Labour has committed to an Employment Bill within the first 100 days in office, should it win an election. Amongst its commitments, it would like to do away with our current three-tiered system (employee, worker and self-employed) and move to something binary (worker and self-employed) more in line with the European model. With the Labour Party Conference a couple of weeks away, it would be good to remind ourselves what we know about its stated policy so far (from its Green Paper: New Deal and, more recently in a National Policy Forum document: Better Jobs and better work). 

Labour would like to create a single status of ‘worker’ for all but the genuinely self-employed. All workers, regardless of sector, wage, or contract type, would be afforded the same basic rights and protections. It would consult on a simpler framework that differentiates between workers and the self-employed.

While we cannot predict the fate of the Status of Workers Bill [HL] (parliament.uk), introduced by Jon Hendy KC of the Institute of Employment Rights, the drafting may well gain traction if the distinction between worker and employee is abolished. Effectively, the drafting in that Bill provides for both worker and employee to mean an individual who is engaged by another to provide labour (or was engaged or seeks to be engaged). Interestingly, it puts the onus on the employer to prove someone is self-employed if this is what they class them as. This reminds me of another presumption in the draft Platform Workers' Directive, What is the Platform Workers' Directive and why is there a need for a new law? (taylorwessing.com), which will affect all labour being supplied in member states; that creates a presumption of employment, provided certain indications of control are present.

You might be tempted to think that redefining employment status is just a nasty drafting job. But actually, it's the post-definition world we should be thinking about. If being a person who supplies labour is enough to give you gateway rights - to unfair dismissal, the right to collective consultation, rights under TUPE - then businesses whose model has depended on keeping employee numbers below a certain threshold for obvious commercial reasons would suddenly have to change their practices and contingency plans overnight, as well as factor in unions.