Rediscovering the Contract of Employment for Non-Standard Workers in the UK Common Law

Abstract

The central concept underlying access to employment rights is based on a binary divide between contract of service (the employee) and contract for services (independent contractor). New classifications of work relationships have however been added over time. These new categories do not sit comfortably with the binary classification system. New ways of working may undermine what we traditionally understand as working relationships. As such the usefulness of this system has been questioned. Yet contract remains central. In view of the lack of any practical alternative it is worth considering whether the interpretation of contract law itself is capable of development. The modern law of contract has the potential capacity to redefine the binary divide so that only those who are truly self-employed are excluded from statutory protection. To do this the meaning of 'contract of service' would need to reflect the reality of labour market contracting and take account of the impact of exploitative bargaining strength. This reinterpretation could potentially expand the classification of contract of service to encompass more non-standard workers within the remit of full employment protection in the UK. Such a possibility depends on how far the employment tribunal and courts have incorporated a contextual framework into their interpretation of contract and how far any context incorporates wider social values consistent with public law standards of fairness and reasonableness. This paper contends that there needs to be explicit acknowledgement by the judiciary that the contextual interpretation of contracts needs to include the economic, political and social imperatives that informed the statutory environment. By seeing the employment relationship in this wider context the pragmatic judge may truly take a purposive stance.