Self-employment: Legal distinctions and case-law precedents
Abstract Employment law has struggled for many years with the problem of employment status. Throughout this struggle, case law has developed a number of tests in this respect. These have been described as hazy and it is certainly the case that applying these tests to workers within the construction industry has not stopped the perceived scandal of mass self-employment. A particular problem in the industry in recent years is the overuse of the labour-only subcontract and over-reliance on agency workers: the problem of casualisation. Tests developed by the courts to deal with casual workers appear not to help the position of individuals working on the basis of such contracts. Nor does the development of the category of ‘workers’ by the European Union (EU) give much cause for comfort. On the other hand, it is not the role of the courts to create contracts where none exist. Rather, their role is to identify the nature of the relationships which do exist between the parties to a contractual arrangement. If the problems of false self-employment and casualisation within the construction industry are to be solved, changes must occur within the industry itself rather than through the manipulation of the legal process.