Employment Status and Human Rights: An Emerging Approach
| Published date | 01 September 2023 |
| Author | Joe Atkinson |
| Date | 01 September 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12803 |
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Modern Law Review
DOI:10.1111/1468-2230.12803
Employment Status and Human Rights: An Emerging
Approach
Joe Atkinson∗
The question of who falls within the ‘personal scope’ of employment law is of fundamental
importance to the eld but remains highly contested. This article makes a novel contribution
by examining the implications of human rights in this context and advocating a fundamental
shift in the courts’ approach to personal scope.It suggests that where employment legislation
functions to protect human rights the scope of these statutes should, at the level of normative
principle, be construed inclusively with any exclusions needing to be justied. The article then
argues that the eect of the Human Rights Act 1998 is to introduce a new human rights
approach to employment status into English law which closely reects this proposal. It sets out
the frameworks that domestic courts should apply, and critically assesses a line of recent cases
which illustrate the emergence and signicance of this human rights approach to personal scope.
INTRODUCTION
The ‘personal scope’ of employment law refers to the class of working relation-
ships and arrangements that fall within the legal category of employment, and
therefore attract statutory rights and protections.1Despite having ‘challenged
legal minds for over a century’,2the personal scope of employment law remains
among ‘the most contentious and crucial questions in the eld’.3Recent lit-
igation and debates regarding the employment status of those working in the
gig-economy have dominated scholarly attention and news headlines, but are
merely a symptom of deeper tensions and longstanding trends.4
∗Lecturer in Law,University of Sheeld. My thanks to Bojan Bugaric,Philippa Collins, Conor Crum-
mey,Br ian Jones and Tsachi Keren-Paz for their comments on earlier versions,as well as to the anony-
mous reviewers at the MLR.Drafts of this paper were presented at Modern Law Review workshops
on the future of human rights at work, hosted by the University of Essex, and on the horizontal
eect of human rights hosted by the University of Durham, the Birmingham Law School Global
Legal Studies Reading Group,and the London Labour Law Discussion Group: my thanks also to the
participants of these events. All errors remain my own.
1 This is sometimes also known as the ‘relational scope’ of employment law,and the two terms
are used interchangeably here.
2 Hugh Collins,‘Independent Contractors and the Challenge of Vertical Disintegration to Em-
ployment Protection Laws’(1990) 10 OJLS 353, 369.
3 Guy Davidov,‘Setting Labour Law’s Coverage:Between Universalism and Selectivity’ (2014) 34
OJLS 543, 543.
4 See Collins, n 2 above; Judy Fudge, ‘Fragmenting Work and Fragmenting Organizations: The
Contract of Employment and the Scope of Labour Regulation’ (2006) 44 Osgoode Hall Law
Journal 609.
© 2023 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023)86(5) MLR 1166–1196
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,which per mits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Joe Atki nson
In English law, the personal scope of employment law is dened via the
concepts of ‘employee’and ‘worker’status.5Workplace rights and standards such
as the minimum wage,holiday pay,mater nity and parental leave, protections of
trade union membership and collective action,as well as against unfair dismissal
and discrimination, accrue only to those who can demonstrate the requisite
employment status. The law on employee and worker status therefore serves
a crucial function as the primary gateway to statutory employment rights and
determinant of employment law’s coverage.The prevailingview,however,is that
courts have struggled to apply the concepts of employeeand worker in a manner
that has kept pace with developments in the labour market. This has resulted
in ‘the exclusion of workers in non-traditional work arrangements who are in
fact in need of protection’,6and is a central cause of what Davidov describes
as the ongoing ‘coverage crisis’ in employment law.7The ‘purposive approach’
to employment status developed by the Supreme Court in Uber BV vAslam
(Uber) may be of some help in this regard,8but as yet its impact remains highly
uncertain. In addition, prominent voices have suggested that courts have little
capacity to reshape the coverage of employment law in response to changes
in the organisation of work, and that parliamentary intervention is needed.9
But there is little prospect of meaningful reform to employment status in the
ong,10 making it vital to consider non-legislative responses to the question of
personal scope.
Against this backdrop this article examines the implications of human rights
for the question of personal scope.It advocates a fundamental shift in the courts’
approach to determining employment status and identies the emergence of
a new human rights approach to personal scope in English law which has so
far been largely overlooked. Although it is now common to adopt a human
rights perspective on employment law,11 the signicance of human rights for
employment status is yet to be adequately considered. Some scholars have
raised the possibility that the inuence of human rights on employment law
5 See, for example,Employment Rights Act 1996 (ERA 1996), s 230.
6 Davidov, n 3 above, 549. See also Sandra Fredman, ‘Labour Law in Flux: The Changing Com-
position of the Workforce’ (1997) 26 ILJ; Jeremias Prassl and Einat Albin, ‘Fragmenting Work,
Fragmented Regulation: The Contract of Employmentas a Dr iver of Social Exclusion’in Mark
Freedland and others (eds), The Contract of Employment (Oxford: OUP,2016).
7 Davidov,ibid.
8Uber BV vAslam [2021] UKSC 5;Alan Bogg and Michael Ford,‘Between Statute and Contract:
Who Is a Worker?’ (2019) 135 LQR 347;Alan Bogg and Michael Ford,‘The Death of Contract
in Determining Employment Status’(2021) 137 LQR 392; Joe Atkinson and Hitesh Dhorajiwala,
‘The Future of Employment: Purposive Interpretation and the Role of Contract after Uber’
(2022) 85 MLR 787.
9 See Patrick Elias, ‘Changes and Challenges to the Contract of Employment’ (2018) 38 OJLS
869; Underhill LJ’s dissenting judgment in Aslam vUber [2018] EWCA Civ 2748.
10 See Department for Business, Energy & Industrial Strategy, ‘Good Work Plan’ (2018) at
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/
le/766167/good-work-plan-command-paper.pdf [https://perma.cc/KN9X-946U].
11 See for example Keith Ewing, ‘The Human Rights Act and Labour Law’ (1998) 27 ILJ
275; Colin Fenwick and Tonia Novitz (eds), Human Rights at Work: Perspectives on Law and
Regulation (Oxford: Hart, 2010); Hugh Collins, ‘Theor ies of Rights as Justications for Labour
Law’in Guy Davidov and Br ian Langille (eds),The Idea of Labour Law (Oxford: OUP,2011); Vir-
ginia Mantouvalou, ‘Are Labour Rights Human Rights’ (2012) 3 Eur Lab LJ 151; Einat Albin,
‘Introduction: Precarious Work and Human Rights’(2012) 34 Comp Lab L & Pol’y J 1.
© 2023 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(5) MLR 1166–1196 1167
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