Labour Law and the Gig Economy

Challenges posed by the digitalisation of labour processes

Jo Carby-Hall, Lourdes Mella Méndez, Jo Carby-Hall, Lourdes Mella Méndez

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000053494
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This international book analyses the impact of digitisation in labour markets, on labour relationships and also on labour processes.The rapid progress of modern disruptive technologies and AIs and their multiple applications to each phase of the labour production system, are changing the production rules on a global scale with significant impacts in every aspect of work. As new technologies transform work patterns and change the type of jobs available - destroying some while creating others - and even the nature of the tasks performed, numerous legal problems arise which are challenging to legislators and legal scholars who need to find appropriate solutions to them. Considering the labour law issues which have been created by technological developments and currently affect the work of millions worldwide, this book highlights the full scope of these issues, suggesting solutions to emerging problems and ways to mitigate the risks brought about through technological advancement.Approaching the present debate with perspectives on legal problems with expertise from a wide range of different countries, this book presents informed and scholarly studies which answer the challenges that new technologies present in labour markets, private lives and labour processes.

Part I

The impact of new technologies in the labour market

1 The Taylor Review 2017 – A critical appreciation on a selection of its legal content

Jo Carby-Hall

Preliminary matter

The ILO’s “centenary conversations” versus the Taylor Review 2017

Driven primarily by the digital revolution and rapid technological advances, the world of work is changing to such an extent that the International Labour Organisation (ILO) established a high-level body to examine the relationship between work and society. The Commission on the Future of Work will address how the future of work can deliver decent and sustainable jobs thereby contributing to decent work and economic growth. Launched on 21^st August, 2017 under the ILO’s Future of Work Centenary Initiative, the Commission will organise its work round four centenary conversations, namely “work and society,” “decent work for all,” “the organisation of work and production” and the “governance of work.”¹ The global body’s examination will seek to provide the analytical basis for the delivery of social justice in the 21^st century.

Coincidently, and although no mention but one² of the ILO initiative is made therein in a different context, the Taylor Review of Modern Working Practices entitled “Good Work” and published in July 2017,³ treats each of the aforementioned “four conversations” in the British context referred to on several occasions in that Review as “the British way.”⁴

The approach of the Review is based on a single overriding ambition, namely “All work in the United Kingdom economy should be fair and decent with realistic scope for development and fulfilment.”⁵ Good work matters because (a) “fairness demands…that people, particularly those on lower incomes, have routes to progress in work, have the opportunity to boost their earning power and are treated with respect and decency at work,” (b) “the quality of people’s work is … a major factor in helping people to stay healthy and happy which benefits them and serves the wider public interest” (c) “better designed work that gets the best out of people can make an important contribution to tackling our complex challenge of low productivity,” (d) “we should as a matter of principle, want the experience of work to match the aspirations we have of modern citizenship; that people feel they are respected, trusted and enabled… to take responsibility, and (e) “the pace of change in the modern economy and particularly technology and the development of new business models, means we need a concerted approach to work which is both up to date… responsive and based on enduring principles of fairness.”⁶

1 Source: “ILO launches Global Commission on Future of Work (21^st August 2017)” http://sdg.iisd,org/news/ilo-launches-global-commission-on-t… (retrieved 14^th October, 2017).

2 See “Good Work: The Taylor Review of Good Working Practices” July 2017, at p. 104 quoting the CIPD submission to the Review in the context of the ILO Decent Work construct for emerging economies or similar ideas of Good Work and Meaningful Work

3 The team consisted of Matthew Taylor (Chair), Greg Marsh, Diane Nicol and Paul Broadbent.

4 See e.g. “Good Work: The Taylor Review of Good Working Practices” July 2017 at pp. 7, 9, 33, 51, etc. hereinafter called “Taylor Review.” See a brief commentary on this Review by Jo Carby-Hall entitled “Le Rapport Taylor de 2017” in Revue du Droit Comparé du Travail et de la Sécurité Sociale, Presses Universitaires de Bordeaux Vol 3, 2018, pp. 182–185.

5 “Taylor Review”, op, cit. at p. 6.

6 Ibid.

These are indeed high principles achieved only in an ideal world of work but to which the British industrial relations system should aspire and strive towards. The Taylor Review is comprehensive, treats a rich variety of industrial relations and other topics⁷ and generally makes realistic and wide-ranging recommendations for changes in specific laws for the British government and Parliament to consider prior to enacting legislation.⁸ The government set out its “Good Work Plan”⁹ in response to the Taylor Review recommendations and described it as “the largest upgrade in workers’ rights in over a generation” which “is a key part in building a labour market that continues to reward people for hard work, that celebrates good employers, and is boosting productivity and earning potential across the UK.”¹⁰

Outline plan of this chapter

Parameters of space do not allow for a discussion to take place on all aspects of this Review. What is proposed is to attempt a critique on a selection of some legal topics therein. These will include (a) the importance of the employment status; (b) the worker status conundrum in comparison to the employee status; (c) greater transparency of rights in the particulars of employment; (d) one/two sided flexibility; (e) continuity of employment; (f) agency workers and HRMC rules; (g) corporate governance and social dialogue (h) corporate transparency; (i) enforcement and (j) a summation.

7 For example, quality of work, clarity in the law, one-sided flexibility, responsible business, fairer enforcement, incentives, self- employment, scope for development, progress opportunities, lasting change, et al.

8 See however the polemic article written by Katie Bales, Alan Bogg and Tonia Novitz “‘Voice’ and ‘Choice’ in modern work practices: Problems with the Taylor Review”, Industrial Law Journal, 46, 2018 at pp. 1–18 where the Taylor Review is subjected to much criticism (retrieved from Westlaw UK in 2018).

9 Published on 17^th December, 2018 Com. 9755 https://www.gov.yk/government/publications/good-work-plan (retrieved 10th February 2019).

10 See commentary by Jo Carby-Hall “Justice au Travail – Lutes à armes égales” in Revue du Droit Comparé du Travail et de la Sécurité Sociale. Presses Universitaires de Bordeaux. Vol. 1 2019 pp. 234–237.

The importance of employment status

The Law Society of England and Wales¹¹ submission to the Taylor Review commented as follows:

Determining whether you are an employee, a worker or genuinely self- employed requires the ability to understand complex legislation, which is spread over many Acts, and be aware of a mountain of case law. For individuals, not knowing your employment status means not knowing what employment rights you deserve. For businesses, this situation can lead to uncertainty about their responsibilities and what can be demanded from workers. The situation does not need to be so complicated.¹²

For individuals to know what employment rights they enjoy, they first need to know their employment status. As the Taylor Review rightly states “Employment status is the gateway through which an individual must go to access statutory rights.”¹³ Individuals working in traditional full-time employment – which, in spite of the rapid developments taking place in new employment forms¹⁴ – still constitute a majority of persons employed and thus enjoy the employee status¹⁵ and the employment rights which automatically go with that status. Individuals who are genuinely independent contractors or self-employed do not generally enjoy any employment rights.

11 The Law Society of England and Wales is the professional association that represents and governs the lawyers’ (solicitors’) profession for the jurisdiction of England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding base for law reform.

12 “Taylor Review”, op. cit., p. 34.

13 Ibid, p. 35.

14 For a detailed evaluation of those new forms of employment which developed by reason of technological and digital developments from circa the latter part of the 1970s onwards, see Jo Carby-Hall “Novel Forms of Employment: Quid Juris?” in “Nuevas Technologías y Nuevas Formas de Trabajar en el Derecho Español y Comparado” (Lourdes Mella Méndez y Pilar Núñez Contreras (Eds)) in e-journal Colecciόn Monografías Derecho Social y Empresa. No. 1 (2016) Dykinson publishers at pp. 32–78 and for even newer forms of employment in the gig economy which took place from circa 2016 see, by the same author, “Innovatory Forms of Employment in the 21^st Century versus Employment Status” in Sociedade de Permutas e Combinações: Problemas Jurídicos da Economia Colaborativa scheduled for publication by Cambridge Scholars Publishing in 2020. See too Jo Carby-Hall “New Frontiers of Labour Law: Dependant and Autonomous Workers” in Du Travail Salarié au Travail Indépendant: Permanences et Mutations (Professors Bruno Veneziani and Umberto Carabelli (Eds)) European SOCRATES Programme (2003) Cacucci Editore. Italy, for more established and traditional employment statuses in the UK as for example, crown employees, office holders, probationary employees, merchant seamen, fixed-term contracts, call centres, piece workers, home workers, temporary workers, apprentices, etc. at pp. 225–246. For the status of seafarers which includes merchant seamen and fishermen see Jo Carby-Hall “The Legal Impact of Brexit on Seafarers’ Employment” in Retos Presentes y Futuros de la Política Maritíma Integrada de la Uniόn Europea (Professor Laura Carballo Piñeiro (Coordinatora)) (2017) J.B. Bosch Editor, pp. 273–299.

15 The Employment Rights Act 1996 s. 230 (1) defines the employee as “an individual who has entered into or works under… a contract of employment” which includes a “contract of service or apprenticeship whether express or implied and (if express) whether oral or in writing.” (s.230 (2)).

The problems of employment status arise where individuals are neither “employees” nor “independent contractors” but enjoy the status of “worker.” That latter status is defined in a most complex manner by legislation.¹⁶

The reality is that, resulting from digital and technological innovation the world of work is changing rapidly and will continue to do so in the future at a relentless and unprecedented pace. Three important matters need to be stressed at the outset. First, British laws – both statutory and common law based on judicial precedent¹⁷ – need to keep pace with technological and digital advances to meet the needs of the modern labour market. Second, and just as important, is that (a) employment of whatever kind needs to be fair and decent so as to give, not only protection to the individual at work, but also (b) to alert businesses which wish to know what their legal responsibilities are toward those whom they employ. Third, the laws – whether statutory provisions or common law – are not overly clear and are open to a variety of interpretations which encourage unscrupulous employers (a) to exploit individuals working for those kinds of employers and at the same time (b) undercut other employers who respect the legal provisions and therefore have an unfair economic a...