Employment law solicitor Richard Grogan considers the need for new legislation to address the gig economy.
By structuring a contract in a particular way, a business can avoid giving an employee any employment law rights.
At first sight, this may sound strange. However, the recent case of Karshan Midlands Limited trading as Domino’s Pizza and the Revenue Commissioners appears, at first sight, to have embedded the test of “mutuality of obligations” as the test for whether an individual is or is not an employee.
The test on mutuality of obligations, as set out in that decision, is that there must be a mutual obligation on a business to provide work and on the individual to perform that work for the relationship of employer and employee to arise.
In the gig economy, the contracts provide that neither the business must provide work nor does the individual have to accept the work offered. There are some conditions, of course.
One of these is that there can be no penalty on the individual if they say they do not want to accept any particular piece of work. Equally, it is not simply a matter of writing a contract on that basis. The courts will look through the contract to see how it operated in practice. In particular, they will look to see whether it is one where the employee could refuse work.
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