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Professor Hugh Collins (Oxford) on Redefining Worker Status in Employment Law

by David Doorey August 7, 2018
written by David Doorey August 7, 2018

Presently, most statutes designed to protect workers apply only to “employees” engaged pursuit to a traditional “employment contract”.

Professor Hugh Collins (Oxford University)

Professor Hugh Collins (Oxford University)


The same is true for most common law protections, such the implied obligation to receive “reasonable notice” of termination of the employment contract, although in recent years Canadian courts have extended the entitlement to notice of termination to “dependent contractors”, workers who in some ways look like independent contractors in business for themselves but who are dependent on a single business for all their work.
The idea that worker protections should be tied to “employment status” dates from the 20th century, when employment law focused on the “standard employment model” (SEM).  The SEM involved relatively long-term employment characterized by stable full time hours, decent pay and benefits, pension plans, and usually deferred compensation systems in which the expectation was that pay and benefits (including for example vacation time) would increase with seniority.   The SEM primarily benefited working men, especially professionals and unionized workers, and employment standards and other employment protection statutes evolved over time to provide basic “minimum” protections for employees, especially those who worked under arrangements other than the SEM, including in jobs that were nonunion and characterized by low pay, variable hours, few benefits, and little job security.

Professor Hugh Collins:   “The concept of employment that was useful in the middle of the twentieth century is now outdated and hard to apply to the various kinds of networks and precarious arrangements through which work is performed. Furthermore, limiting employment protection rights to employees has proved to be an invitation to employers to engage in sham contracts by which they manipulate the terms to present the appearance that the worker is an independent contractor, albeit one that works full-time and only for that particular employer.”

The challenge today is that fewer and fewer people are employed under the SEM model. As I write on page 26 of the The Law of Work text: “Nearly 40 percent of Canadians today work under other types of work arrangements, including precarious part-time or temporary work, or as own account self-employed workers, many of whom struggle to earn enough to live“.  Ccademics and policy makers have for years been debating how employment law should evolve to extend worker protections beyond the SEM to a wider definition of worker that includes “gig” workers and other arrangements in which a worker has some independence and yet remains vulnerable and precarious.
Professor Hugh Collins (now at Oxford) who supervised me at LSE has recently published an interesting  contribution to this debate on the excellent new UK Labour Law Blog entitled “A Missed Opportunity of a United Test for Employment Status“.   Here is the text.   As you read it, think about the extent to which Professor Collins arguments apply to Canadian law as well.

Over the summer the government is contemplating what it should do about the thorniest issue in employment law: employment status. The concept of ‘employment status’ refers to the type of contractual arrangement that a worker must have in order to qualify for employment rights. The government commissioned the independent report, Good Work: The Taylor Review of Working Practices (July 2017). The report concluded, in brief, that the current tripartite division of employment status into independent contractors, employees, and workers functions reasonably well in most cases, but there was so much uncertainty about how the legal tests should apply in borderline cases, especially those provoked by new platform technologies, that the government should consider legislation to clarify the legal tests. Having broadly accepted the recommendations of the Taylor Review, the Department for Business, Energy & Industrial Strategy (BEIS), HM Treasury, and HM Revenue & Customs (HMRC) together launched an Employment Status Consultation in February 2018. The consultation document indicates that the government plans to give greater clarity and certainty to tests of employment status by more detailed legislation that attempts to codify the criteria developed by the courts. Indeed, it is hard to imagine that we cannot improve on the definition of the employment status in the Employment Rights Act 1996 s. 230, which, with a degree of obfuscation worthy of a prime minister, proclaims in effect that ‘Employment means Employment’….

[Continue reading on the UK Labour Law blog…]

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

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RSandillRicha Sandill@RSandill·
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@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

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TheLawofWorkDavid J. Doorey@TheLawofWork·
24 Feb

Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

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CanLawWorkForumCLWF@CanLawWorkForum·
24 Feb

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
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