Conflating Consideration and Continuity: Mutual Obligations in Relational Contracts

Mutuality of obligation is a long-established ingredient in the test for employee status. Long recognised as a problematic ‘rock [on which] claimants’ cases founder’ in different forms of non-standard work, the test has nonetheless spread into broader categories, including worker status (Byrne Bros) and now discrimination law (Windle). In this paper, I return to the origins of mutuality of obligation, arguing that the test conflates (contractual) consideration and (statutory) continuity requirements. On this basis, I criticise its role and increasing counterfactuality in a world of continuity-independent rights, and argue for a return to standard contractual principles to govern the formation of the contract of employment and associated categories.