A Solution to Fissuring? Revisiting the Concept of the Joint Employer

Abstract

Among other matters, the Taylor Review addressed the issues of employee and worker status for statutory purposes and how the current law might be updated to reflect the realities of the modern workplace and developing models of the engagement of workers. It did not, however, propose reform in relation to the important and intimately connected question of the identity of the employer for the purposes of employment protection legislation. In particular, no consideration was given to or proposals made in its report in respect of the issue of whether a 'functional' employer approach to ascribing responsibility for compliance with employment law requirements - such as a 'joint employment' model - might be appropriate to deal with issues of perceived inadequate coverage of employment protection standards consequent upon certain employment legislation being limited in its application to the 'contractual' employer. While there are cogent objections to adopting a functional employer approach, the most recent domestic caselaw and the ongoing debate concerning the operation of the joint employer concept in the USA offer a valuable perspective on the scope and design of a functional employment model which can contribute to any debate which might ensue about the justification for, and feasibility of, such an approach.