Anatomy of an employee

Obfuscation, uncertainty and opacity. These are just a few of the words that may be used to describe the judiciary’s attempt at producing a consistent and accurate identification of employment status of individuals. Given its significance, one may have considered that definitive instruction and guidance would be present to navigate interested parties. However, where clarity is required, only confusion remains. This is not to lay the blame at the door of the judiciary entirely. The ‘mix of law and fact’ involved in the identification process incorporates facts in each case which will invariably lead to contradictory decisions, but the underlying principles established in law – created by the judiciary in the absence of any specific and meaningful guidance from the legislation, must offer key criteria on which impartial decisions as to the employment status of an individual can be made. This paper attempts to identify those key criteria present in the judgments indicative of employee status and thereby provide instruction for interested parties.