Professor Michael Doherty:

I agree with the Deputy's latter comments, in particular. The definition laid down in the National Minimum Wage Act, for example, strangely approximates to the UK definition of "worker". I am not aware of it ever having been subject to litigation. I am not aware of any decision on it by the WRC or previous tribunals. The wording, however, is very similar to the definition of "worker" in the United Kingdom.

Leaving that aside, I believe the Deputy is right that in the Uber case in the United Kingdom, had the option been open to the UK courts and tribunals to regard the drivers in question as employees, they might well have done so. That is the weakness of a third category. I will be sanctioned and censured by my colleagues for saying this, but I am a professor of employment law who always seeks to avoid legal solutions to employment relations problems, where possible. Introducing a third category would probably just introduce more complexity and litigation, but I understand the rationale.

One can see that, where it is all or nothing, it might be attractive to tell a person they do not get employee status but could fit into the other status to avail of some protections. The introduction of this category in the UK, however, has not led to any particularly favourable outcomes. I am not sure that the third approach is one I would recommend.