Employment law Essay Example | Topics and Well Written Essays - 3000 words - 2

Employment law - Essay Example The emphasis is on the common law tests used to determine employee status. This is a particularly contentious area in the modern labour markets where the lines between the employed and self-employed are increasingly â€Å"blurred†.3 This paper demonstrates that the common law tests developed to determine the employee status is unsatisfactory and why. I. Significance of Determining Employee Status Initially, the courts treated the employee status as one defined around the concept of master and servant. As a result, during the 19th century, the employment relationship was primarily regarded as one of service in which the emphasis was on the servant’s (employee’s) duty to remain loyal and subservient rather than the master’s (employer’s) duty to â€Å"provide continuing employment.†4 In more recent times the word â€Å"worker† continues to gain currency in legislation and regulations suggesting the modernisation of employee status.5 For i nstance, Section 230(3) of the Employment Rights Act 1996 provides that: In this Act ‘worker’ (except in the phrases ‘shop worker’ and ‘betting worker’) means an individual who has entered into or works (or, where the employment has ceased, worked under) – (a) A contract of employment, or (b) Any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that or a client or customer of any profession or business undertaking carried on by the individual.6 In other words, the term worker is used interchangeably with the word employee, reflecting the varying forms of employment that can take place in modern times. For instance the individual who works from home may not be under the kind of control that the workplace employee is, but should not be denied employee status.7 The use of the word worker immediately draws attention to the changing nature of the employee status and carries with it the identification of the significance of the employee in today’s labour market. The employee is no longer a servant, but a source of human capital. In this regard, the common law tests for determining the master servant relationship which necessarily flow from the older notion of master and servant, is no longer compatible with modern notions of the employee/employer relationship. There are essentially four primary reasons justifying a more robust test for determining employee status in more recent times. To begin with, the predominance of the contract of employment as a basis for identifying the employee’s status does not take into account the relative inequality of bargaining power between the employee (the weaker party) and the employer.8 These inequities compromise the extent to which the employee may bargain for and ob tain specific benefits under the contract of employment. The fact is, a self-employed worker will obviously be responsible for its own salary and health and safety at work.9 Secondly, the