Employment Bill [HL]

I wish to make two points. First, I express some surprise that no advice was given that this amendment did not fall within the Long Title or the scope of the Bill. If you change or enact a definition of the contract of employment, as this amendment tries to do, you affect the entire, enormous area of employment law: both common law decisions and, rather more importantly, the employment protection legislation, the employment tribunal legislation and even the Gangmasters (Licensing) Act, which is very much affected by a change to the definition of the contract of employment. However, it was my understanding of one conversation—I hope I do not break any confidences—that a fairly relaxed view is being taken about what is admissible as an amendment to this Bill, and Amendment No. 28 shows how right that is. Secondly, I wish to oppose the amendment on substantive grounds because its drafting is so serious that it would deprive tens, if not hundreds, of thousands of workers of their status as employees under a contract of employment. I say that because of proposed new subsection (1)(b), which is the central principle in regard to the contract of employment. When is a worker an employee? When, the amendment says, "““the employee is subject to a right of direction and control as to the manner in which the services are provided””." That is the old, crude test. One finds in the leading text book on this matter some 60 pages of discussion about that, beginning with the fact that the control test has become very much more relaxed in cases after 1890, which is the sort of date to which this amendment, with great respect, belongs. There have been other tests, such as: is the worker part of the enterprise in a way that integrates him into it? Another test, which judges use very much now, is whether someone is in business on his own account. That is quite different from the control test, but often merges with it into a very subtle set of decisions which I shall not refer to by name this time. Let me give some examples. In modern law, employees include a skilled surgeon—I do not know how an employer will give him direction in the manner of his work; a train engine driver; an aeroplane pilot; a proficient crane driver; an experienced master of a vessel—the control test just will not give you the answer there—and many other people. A Law Lord once said that if someone were told that the master was going to control the manner of their work, they would give a sturdy answer and say, ““I know how to do my job””. So the control test in proposed new paragraph (b) is the only test that really stands. The first is that the employer should be under an obligation to provide service personally, which of course is correct, and the last is that there must be an obligation on the employees to continue performing services and for the employer to continue remunerating the work—which in modern jargon is generally called the wage-work bargain. Yes—but, without something more, you cannot tell whether someone is in business on his own account. That comes under proposed new paragraph (b). It is slightly out of date, to put it mildly, given that 60 pages of cases are cited in the leading text book, showing that all sorts of other tests are used. The amendment would deal in particular not only with employment protection law but also with tax. I was told on the previous amendment that any amendment that touched no tax was much too difficult to consider until the next employment Bill, which may be way over the horizon. So I hope that the noble Lord, Lord Razzall, will see fit to withdraw this attempt to cover the entire area of employment law with a new definition, which, with the greatest respect, is deficient.