The ‘purposive approach’ developed by the Supreme Court in Autoclenz and Uber is crucial to the
future evolution of employment law. It should resolve the problem of exclusion of ‘atypical’
working relationships from the law’s coverage.
Discuss.
The judiciary’s application of the purposive approach in Autoclenz Ltd v Belcher and Others (2011)
and Uber BV v Aslam (2021) is crucial to the future evolution of employment law, effectively
addressing the plight of atypical workers who are disadvantaged under the current system.
This essay will first outline the issue of employment status and define the purposive approach before
analysing how it was applied to the facts in Autoclenz and later developed in the case of Uber.
Secondly, this essay will explore the impact of the Supreme Court’s application of the purposive
approach on the development of employment law, investigating the practical consequences for
workers and determining whether this will resolve the problem of the exclusion of ‘atypical’ working
relationships from the law’s coverage. Finally, it will be concluded that the purposive approach is the
most effective way to afford those working outside the traditional employment model further rights.
Issue of Employment Status
Under the current framework of labour laws, there is an issue with the classification of workers and
distinction of employment status for different work arrangements and subsequently means that the
number of workers who are misclassified as independent contractors is increasing.
Under section 230 of the Employment Rights Act 1996, an employee is defined as an individual who
works under a contract of service or employment, whilst a worker is an individual who works under
a contract for services as an independent contractor. Significant legislative rights have only been
afforded to ‘employees’ since the enactment of the Contracts of Employment Act 1963, such as
, protection from unfair dismissal, redundancy rights, maternity leave and specific rights relating to
trade union membership. The primary criticism of this framework is the lack of rights and
protections afforded to vulnerable individuals in ‘atypical’ working arrangements, which are on the
rise, such as agency workers, casual workers on zero-hour contracts and ‘self-employed’ platform
workers.
The purposive approach
There has long been a “trend away from the purely literal towards the purposive construction of
statutory interpretation” (Carter v Bradbear [1975]) due to the restricted and unsatisfactory results
produced by literalism. As determined by Pepper v Hart [1992], the purposive approach gives effect
to a legislation’s objective and Lord Clarke first determined the Supreme Court to advocate its use in
employment law in Autoclenz. This approach is crucial to the evolution of employment law because
the ultimate goals behind statutes can be enforced, by looking behind the distinction of ‘employees’
and ‘workers’ to decide who should be protected, an approach which is well adapted to managing
new types of work arrangements in line with the fast past change in the industry.
Autoclenz
Despite an attempt by the appellant to prove that the valets were self-employed, the tribunal in
Autoclenz disregarded the contractual agreements, as they did not reflect the “true agreement” and
held that the valets were workers. This set an important precedent for disregarding the contractual
agreements when taking them as conclusive would subsequently frustrate the objectives of the
employment statutes to afford protections to workers. This demonstrates a recognition of the role
the court plays in balancing out the superior bargaining power and economic advantage of
employers who can abuse employment contracts to refuse workers’ legislative rights enacted to
protect individuals from further unfair treatment (Taylor Review). Therefore, a strong positive
future evolution of employment law. It should resolve the problem of exclusion of ‘atypical’
working relationships from the law’s coverage.
Discuss.
The judiciary’s application of the purposive approach in Autoclenz Ltd v Belcher and Others (2011)
and Uber BV v Aslam (2021) is crucial to the future evolution of employment law, effectively
addressing the plight of atypical workers who are disadvantaged under the current system.
This essay will first outline the issue of employment status and define the purposive approach before
analysing how it was applied to the facts in Autoclenz and later developed in the case of Uber.
Secondly, this essay will explore the impact of the Supreme Court’s application of the purposive
approach on the development of employment law, investigating the practical consequences for
workers and determining whether this will resolve the problem of the exclusion of ‘atypical’ working
relationships from the law’s coverage. Finally, it will be concluded that the purposive approach is the
most effective way to afford those working outside the traditional employment model further rights.
Issue of Employment Status
Under the current framework of labour laws, there is an issue with the classification of workers and
distinction of employment status for different work arrangements and subsequently means that the
number of workers who are misclassified as independent contractors is increasing.
Under section 230 of the Employment Rights Act 1996, an employee is defined as an individual who
works under a contract of service or employment, whilst a worker is an individual who works under
a contract for services as an independent contractor. Significant legislative rights have only been
afforded to ‘employees’ since the enactment of the Contracts of Employment Act 1963, such as
, protection from unfair dismissal, redundancy rights, maternity leave and specific rights relating to
trade union membership. The primary criticism of this framework is the lack of rights and
protections afforded to vulnerable individuals in ‘atypical’ working arrangements, which are on the
rise, such as agency workers, casual workers on zero-hour contracts and ‘self-employed’ platform
workers.
The purposive approach
There has long been a “trend away from the purely literal towards the purposive construction of
statutory interpretation” (Carter v Bradbear [1975]) due to the restricted and unsatisfactory results
produced by literalism. As determined by Pepper v Hart [1992], the purposive approach gives effect
to a legislation’s objective and Lord Clarke first determined the Supreme Court to advocate its use in
employment law in Autoclenz. This approach is crucial to the evolution of employment law because
the ultimate goals behind statutes can be enforced, by looking behind the distinction of ‘employees’
and ‘workers’ to decide who should be protected, an approach which is well adapted to managing
new types of work arrangements in line with the fast past change in the industry.
Autoclenz
Despite an attempt by the appellant to prove that the valets were self-employed, the tribunal in
Autoclenz disregarded the contractual agreements, as they did not reflect the “true agreement” and
held that the valets were workers. This set an important precedent for disregarding the contractual
agreements when taking them as conclusive would subsequently frustrate the objectives of the
employment statutes to afford protections to workers. This demonstrates a recognition of the role
the court plays in balancing out the superior bargaining power and economic advantage of
employers who can abuse employment contracts to refuse workers’ legislative rights enacted to
protect individuals from further unfair treatment (Taylor Review). Therefore, a strong positive
