page_title: United Kingdom labour law
section_title: Scope of protection
hierarchical_section_title: United Kingdom labour law / Employment rights and duties / Scope of protection
caption_attribution_description: IMAGELIBRARY/70 Persistent URL: archives.lse.ac.uk/dserve.exe?dsqServer=lib-4.lse.ac.uk&amp;a...
context_page_description: United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK benefit from a minimum charter of employment rights, which are found in various Acts, Regulations, common law and equity. This includes the right to a minimum wage of £8.21 for over 25-year-olds under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempts to limit excessively long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995.
  To get fair labour standards beyond the minimum, the most important right is to collectively participate in decisions about how an enterprise is managed. This works through collective bargaining, underpinned by the right to strike, and a growing set of rights of direct workplace participation. Workers must be able to vote for trustees of their occupational pensions under the Pensions Act 2004.
context_section_description: The UK has not yet codified a single definition of who is protected by labour rights. The law has two main definitions (employee and worker) and three minor definitions (jobholder, apprentice, and an "employment relation") each with different rights. EU law does have one consolidated definition of a 'worker': someone who has a contract for work in return for a wage, or an indirect quid pro quo (as in a communal cooperative), and also stands as the more vulnerable party to the contract. This reflects the kernel of classical labour law theory, that an employment contract is one infused with "inequality of bargaining power", and stands as a justification for mandating additional terms to what might otherwise be agreed under a system of total freedom of contract.
  First, an "employee" has all main rights, including job security, retirement, child care, and the right to equal treatment. Most people are employees, although this has not yet been fully defined in the Employment Rights Act 1996 section 230. Instead, Parliament left it to the courts to decide what "employee" with a "contract of service" meant, although the government can explicitly put people into the "employee" category. The classical common law test was that an employee was subject to the employer's 'control'. But in the 20th century, more people worked outside factories where they had greater autonomy in performing their jobs. New tests were used, such as whether an employee was "integrated" into the workplace, or wore the "badge" of the organisation. Most importantly, because employers paid National Insurance contributions for their employees, the tax authorities had a central role in enforcing the proper distinction. Courts focused on "economic reality", and form over substance. It could also be relevant (but not decisive) if employees owned their tools, if they had the chance of profit, or bore the risk of loss. But in the late 1970s and 1980s, some courts introduced a new test of "mutuality of obligation". The dominant view of this, now approved by the UK Supreme Court, was merely that employees only needed to exchange work for a wage: this was the "irreducible core" of an employment contract. But a rival view stated that the employment relationship had to be one where there was an ongoing obligation to offer and accept work. This led to cases where employers, who hired people on a casual basis, low wages, and with little bargaining power, argued they owed no duties to their staff, because they had neither side had assumed any such obligation. However, the leading case, Autoclenz Ltd v Belcher decided by a unanimous Supreme Court in 2011, adopted the view that mutuality of obligation is the consideration of work for a wage. Lord Clarke held that an exchange of work for a wage was essential, but that employment contracts could not be treated like commercial agreements. As he put it,
  the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description.
  This meant that a group of car valeters, although their contracts said they were self-employed, and professed to have no obligation to undertake work, were entitled to a minimum wage and paid leave. The contract terms could be disregarded because they did not represent the reality of the situation. The second major category is of a 'worker'. This is defined in Employment Rights Act 1996 section 230 as someone with a contract of employment or someone who personally performs work and is not a client or a customer. This means all employees are workers, but not all workers are employees. Non-employee workers are entitled to a safe system of work, a minimum wage and limits on working time, anti-discrimination rights, and trade union rights, but not job security, child care, and employer
caption: Sidney and Beatrice Webb, in their book Industrial Democracy argued that because workers' inequality of bargaining power meant they could not contract for it themselves, law should create a "national minimum" of workplace rights, with trade unions to secure a living wage.
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