The long-waited Taylor Review of Modern Working Practices is now published, under the title Good Work and it is, I am afraid, very disappointing indeed. In terms of its concrete recommendations it goes beyond being a missed opportunity, out of kilter with its times, to posing an active threat to workers’ rights and undoing past advances.
As might be expected from a lead author who was appointed head of Tony Blair’s Number 10 Policy Unit in 2005, it is not short on spin. It speaks repeatedly of ‘enduring principles of fairness’, nods often to the idea of good work as an essential ingredient of happiness and wellbeing and claims to be focusing ‘not just on new forms of labour such as gig work but on good work in general’. Pious mission statements, such as ‘We believe work should provide us all with the opportunity to fulfil our own needs and potential in ways that suit our situations throughout our lives’ sit alongside nods to the inevitability (and benignity) of technological progress. In the classic contradictory formula of centre-left neoliberalism it manages simultaneously to say that ‘Good work is something for which Government needs to be held accountable’ and ‘The best way to achieve better work is not national regulation but responsible corporate governance’!
Why was it no surprise to discover this morning that Taylor’s co-investigator, Greg Marsh, was a former investor in that most visible of gig economy companies, Deliveroo?
Out of kilter with the time
In light of recent events, the report seems oddly old-fashioned. It is little more than six months since the Inquiry was established (in October 2016) but during that period there have been unprecedented developments on the ground, with an upsurge in organising by casual workers in the UK (and elsewhere). New trade union organisations, such as the UPHD (United Private Hire Drivers) and the IWGB (International Workers of Great Britain IWGB) have sprung up to represent drivers for platforms like Uber and delivery workers for companies like Deliveroo as well as casualised workers in other sectors, such as outsourced cleaning workers, porters and foster carers. A series of test cases brought by these organisations, sometimes with the support of traditional trade unions like the GMB, have established in case after case that workers for companies like City Sprint, Uber and Pimlico Plumbers are not the ‘independent contractors’ these companies claimed they were but ‘workers’, entitled to such rights as the minimum wage and paid holidays. As a result of these, and other well-publicised cases of exploitation of low-wage workers, such as Sports Direct, there has been a sea-change in public attitudes to fairness at work evidenced by the popularity of the demand for an end to zero-hour contracts in the Labour Party Manifesto.
The British public seems, at last, to have seen beyond the rhetoric that elides what is ‘flexible’ for the employer (in the form of a just-in-time workforce, waiting to be summoned at short notice by an app) with the older demands raised fifty years ago by the Women’s Movement for a ‘flexibility’ that responds to the unpredictable demands of family. Having lived it in their own lives, or watched their kids do so, most people now see only too well that being available on demand makes it very hard indeed to manage your own life, especially when childcare is involved. But the report shows no awareness that workers and employers may have different interests, merely stating vacuously that ‘Encouraging flexible work is good for everyone and has been shown to have a positive impact on productivity, worker retention and quality of work’.
While public opinion seems to have been saying ‘enough is enough’, the court judgements have been saying, in the words of Jason Moyer-Lee, General Secretary of IWGB, ‘”gig workers” already have rights – all we need to do is enforce them’.
A rational response to this situation – the opportunity that this report misses – would take the existing principles as a starting point and work to ensure that there are clear guidelines for their implementation, putting the onus of proof not onto vulnerable workers but onto those who dictate their working conditions and profit from their services. But this is very far from the Taylor approach.
The report quite rightly recognises that the employment status of casual workers is confusing and poorly understood. This is partly because it is dealt with separately under the tax system and in employment law. Under the tax system, unless you have some other legal status such as being a limited company or a partnership, you are either an employee or self-employed. Many workers living hand-to-mouth think it is preferable to be self-employed because that way they can defer the payment of income tax and set expenses against it. Under employment law being an employee brings a range of rights and protections, including such things as maternity and paternity pay, sick pay, parental leave and pensions coverage. These are probably worth much more to most workers in real terms than whatever tax savings they make by being self-employed, but of course can only be claimed if your employer actually agrees that you are indeed an employee and fulfils his or her part of the bargain. There are however some rights, guaranteed under employment law to all workers regardless of whether they are formally classed as employees. These include the right to the minimum wage and to paid public holidays.
The difficulty of establishing employee status is not new. Back in the 1970s and 1980s when I was doing research on homeworking this issue came up again and again. Frightened women, unaware of their rights, were told firmly that they were not employees (often believing – usually wrongly – that what they were doing was not quite legal and that if found out they would become liable for tax or national insurance payments and fined for being in breach of health and safety or tenancy regulations) so they would accept that they had no rights. The law had then no single test for being ‘genuinely self-employed’. Tribunals or courts were supposed to weigh up a lot of different factors such as who determined what work should be done and what should be paid for it, whether or not the worker had the right to employ somebody else to do it, how continuous it was, who paid for the materials and so on. Little has changed since then, although the case law has moved on. The most crucial principle is whether a relationship of subordination can be said to apply.
In the case of most platform companies, there is little doubt that the workers are indeed subordinate. Although practices vary from company to company, workers are usually told precisely what to do, with each ‘task’ well defined and costed. Not only is their pay and work process laid down, there are also typically detailed rules about quality standards to be met. While there may be some limited right to turn a few jobs down, there are usually strong penalties for doing so repeatedly. They do not have the right to pass the work on to others. And in some cases (Deliveroo being a case in point) they are even required to wear uniforms or sport company logos.
The report could have laid out clear guidelines for defining genuine self-employment and spelled out the obligations of employers of subordinate workers. But what it has done instead is muddied the waters still further by proposing exceptions to the existing principles which could be detrimental not only to workers who are currently working casually but also to other workers, including those currently defined as employees.
How could its recommendations make matters worse?
- Establishing a new intermediate kind of employment status – the ‘dependent contractor’
The report proposes setting up ‘an intermediate category covering casual, independent relationships, with a more limited set of key employment rights applying’. Although this approach has been rightly resisted by British legislators in the past, this is not a particularly original response. Indeed it something of a knee-jerk reaction by neo-liberal ‘modernisers’ to the development of new forms of work. It was, for example, strongly promoted in Europe in the 1980s and 1990s (for example by the Belgian labour lawyer Roger Blanpain) as a way of encouraging teleworking without bringing it completely within the scope of existing employment protection laws. Italy provides a particularly extreme example of the ways in which different forms of ‘parasubordinate’ status and sub-categories of self-employment have been created to cover workers, such as call centre workers, who fall outside traditional sectoral agreements and regulatory categories. The overwhelming evidence is that when such new kinds of status are established they do not just result in reduced coverage for the ‘new’ kinds of workers who fall under them but, even more importantly, are then extended across the workforce to bring other more traditional forms within their scope, resulting in a worsening of conditions across the board. In other words, what they do is provide employers with a new tool for casualisation and erosion of existing rights, whatever well-intentioned language is used that purports to prevent this.
- Undermining the minimum wage
The report also proposes a change in the way that the National Minimum Wage (NMW) is applied: ‘In re-defining ‘dependent contractor’ status, Government should adapt the piece rates legislation to ensure those working in the gig economy are still able to enjoy maximum flexibility whilst also being able to earn the NMW’. What it proposes is complex, and difficult to summarise here. At the headline level it looks like a proposal to increase the NMW by a modest amount for workers with the proposed new ‘dependent contractor’ status. However the report also wags a stern finger at those who think that workers should be paid for all the time they spend waiting for jobs to come up, which is, they say unreasonable and open to abuse. Given that many workers in the gig economy spend half their time or more logging on in the hope of work that does not arrive, this could in practice lead to a fall in the time eligible for payment.
There is more in the report. I have only scratched the surface here. But am about to board a flight for China so will postpone further discussion for another day.