Independent Worker's Union Files Outsourced Workers case: A landmark case or simply the direction of travel?

 The news yesterday that the Independent Workers’ Union was filing a case on behalf of 75 outsourced workers who are seeking more rights at work was an interesting development, but probably not that surprising, despite reports describing it as a ‘landmark case’ for the rights of such workers.

In a time of some resurgence within the Labour party, and a Labour party that is more in tune with its union membership than that of the recent past, we have seen an upturn in union action and muscle flexing across a number of areas.  So in the first instance, union action at the moment is not altogether surprising.

And then there is the backdrop.  There have been a number of high profile worker status cases this year, the Uber ones arguably the highest profile of the lot.  Then there’s been the Matthew Taylor report from the summer which probably hasn’t got the press we might have expected because everyone’s been talking about the inertia of the Brexit negotiations.  But that analysis has propagated the newly published report a “Framework for Modern employment” (more here) from the Government; and we might reasonably expect the imminent Budget to contain more news on PAYE and NICs avoidance. 

So all in all - though shrewdly timed to apply pressure in the weeks immediately after the Budget when the details of the Budget announcements are ironed out and the union might hope to make some headway in pressing for change - this case is, far from landmark, about as a surprising as Christmas turning up once a year.

Will it succeed?  Well, that’s an interesting question.  We have to hand at the moment of course almost none of the facts of the case beyond the broad job titles and the end client in question – none of which give us any indication of the levels of “supervision, direction and control” – the three buzzwords of the moment in this area.

But if I were a betting woman (which I’m not!), I’d have to say “no”.  While the courts gently nudge statutory law in certain directions, a wholesale change in the English legal principle of having one employer to allowing the existence of joint employer status would be more than a gentle nudge. 

But might it succeed in a different way?  Might they lose the battle but win the war?  Well then yes, I think they might.  Not necessarily on the joint employer claim – that would be quite a messy thing to establish in statute and I think other outcomes are more likely.  But as part of the dripping water of change, might this be part of the movement that continues the changing face of employment status?  Then yes.  Yes, I think it could.

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