WorkLife

Our thoughts on the world of employment law - and beyond.

Just how good is the Taylor "Good Work" Review?

Describing your own report as "Good Work" might suggest that Matthew Taylor is quite pleased with the outcome of his Review into Modern Working Practices

From my perspective as an employment lawyer, the Taylor Review is wide ranging and thought provoking, with high aspirations and laudable ideals.  However, from the outset, a major concern is whether or not any of the recommendations will make it into legislation any time soon?  There was no provision for actual legislation in the Queen's Speech and we know that there will not be another until 2019 – assuming the current Government is still in place by then. 

The Taylor Review goes far further than simply reviewing the Gig Economy and has potential implications for all employees, employers, the self-employed and workers.  The overreaching aim "is a call for us as a country to sign up to the ambition of all work being good work".  This is exceptionally ambitious, but the methodical approach to the different components of how this might work, as set out in the Review, is impressive and persuasive.  In the meantime, its findings, observations and aims go beyond pure legal issues and it stands as a fascinating social commentary of our time.  Even in the absence of legislative implementation, if the recommendations of this Review are embraced, they would have a significant impact on balancing employment rights, protection and security against the need for there to be sufficient flexibility to enable us to be agile and continue to benefit from what is described as "the British way" – in essence not too free a market so as to allow exploitation of workers and yet not so restrictive that there is work to rule.  Fair play, essentially.

Somewhat surprisingly, there was no proposal to ban zero hours contracts, which had been perhaps anticipated; cracking down on flexibility is not the message of the Review.  On the contrary, flexible working is held up as an essential element of the UK's economic strength and is seen as a key factor in the UK being rated as having the 5th most efficient labour market in the World Economic Forum's Global Competitiveness Report 2016-17.  As such, it is said that we enjoy higher employment rates and a stronger more resilient economy which, interestingly, "has better protected the labour share and delivered more real terms wage growth than more rigid systems." The Review is unequivocal: "This is why flexibility matters".  

In practical terms, the Employment Tribunals will be the most obvious forum in which the ambitions of the Review may be played out.  The scrutiny of truly self-employed status, as litigated in the Uber, Pimlico Plumbers and Deliveroo cases, will undoubtedly continue and the ET has already been bold and decisive in its decisions.  ETs are demonstrating their ability to step back and look at the entirety of the working relationship in such cases in order to determine, overall, how much control there is in reality over the so-called "independent contractors" - regardless of what the clever lawyers may have put in place (shame).  The Taylor Review reinforces the need for an overall consideration of these factors to establish the true employment status and recommends that the "best elements" of case law will be retained and incorporated into legislation for this purpose - on reading that section alone, I imagined a collective intake of breath and raising of the eyebrows of employment lawyers across the land as we anticipate the future debate over exactly what that means and whose case law is the "best" – competitive, us?

There have of course been a few sensationalist headlines picking out the reported proposal to eradicate the cash in hand economy and raise £6bn of tax revenue: "no more cash to baby sitters" "window cleaners must pay tax!" "PayPal for pocket money" or fears of an "Orwellian cashless society". However, the proposal of clarifying employment status is appealing, even if the new term of "dependent contractor" has met mixed reviews.  A free, formal determination of employment status in the Tribunal before bringing a claim is interesting (although who will decide that? – I feel an urge to appeal and it isn't even in place yet), as is the wider tax-related implication that there should be no tax differential between a self-employed and an employed person so that employment status would be tax neutral. 

There are of course many more employment law recommendations not mentioned here and I do encourage you to read the Review to get a feel for those.  If you don't fancy trawling through all 115 pages though, I attach a link to Darren Newman's extremely useful post, which helpfully lists the 31 employment law proposals and page references in the Review.  (Thank you Darren on behalf of employment lawyers everywhere.)

In summary, there is a lot to digest, there is a lot you may not agree with either personally or professionally, but overall I do think that this Review lives up to its title – in my view it is "Good Work"; it is certainly a lot of work and a lot of thought provoking work.  However, the big question is what happens next and whether the best and most commercial elements of this Review will ever make it into legislation?  The Prime Minister has promised a detailed response later in the year (although she sounds a bit busy at the moment, so it will be interesting to see quite how much later that is) and has asked for cross-party engagement; good luck with that.  That said, we live in such interesting times who knows what might happen!  Let us be positive and aspire to the "Nice Job" Act 2020. You heard it here first. 

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