MT week 2 – Thursday 18th October, The Law Board Room
Worker Status, Mutuality of Obligations, and the Paradox of Precarity
A spate of recent employment status cases, from Aslam v Uber (on appeal to the CA this autumn) to Pimlico Plumbers ( UKSC 29) have tackled the question of ‘worker’ status – an intermediate category in employment and anti-discrimination legislation. Underneath a seemingly worker-protective surface, however, lurks the slow yet steady rise and expansion of the doctrine of mutuality of obligations. There is a real danger that the question as to ‘mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer’ might become the new gateway to all statutory employment and anti-discrimination rights. (Nethermere (St Neots) Ltd v Gardiner  ICR 612 (CA) 632F–G.)
This is deeply problematic as a matter of labour market regulation. More importantly, it is also problematic as a matter of legal doctrine: even as regards the core employee category, mutuality of obligation is built on an historical misunderstanding of the criteria for the formation of a contract of employment. Its subsequent expansion into the wider statutory categories furthermore has the potential fatally to undermine Parliament’s efforts to provide a large group of workers with access to basic employment and anti-discrimination rights. The correct interpretation of the mutuality test across all categories, I suggest, is nothing more than consideration in the individual wage/work bargain.