Lawyers doubt Labour's worker status test will reach the 100,000 workers Reynolds cited

Reynolds put a ceiling on his own figure. "We will close the loopholes, we will stop the most egregious examples of bogus self-employment, and we will level the playing field for business," he told the Labour Party conference ^[2]. "And in doing so, up to 100,000 more workers will get access to the national minimum wage and holiday pay," he said ^[3]. The remarks as reported do not say how that estimate was built. Lawyers now worry the plan could have less impact than hoped ^[1].

The reported change is aimed at one question. The personal service test asks whether an individual must carry out the work personally or can appoint a substitute ^[6]. In 2018 the High Court ruled that a genuine substitution clause in Deliveroo riders' contracts meant they did not count as workers, and the Supreme Court upheld that decision in 2023 ^[7]. Other gig economy companies have since put substitution clauses into contracts with drivers and couriers. Under those contracts riders can lend their accounts to others or work for competitors ^[8].

Caspar Glyn's objection is that tribunals already look at how someone actually works ^[11]. He suggested that a more radical change, made in primary legislation, is what a government serious about bogus self-employment would put out to consultation ^[12]. I think he is right about the clause change taken alone. A tribunal that already tests the reality of a relationship gains little from being told to weigh contract wording less. The presumption of worker status is a different kind of change ^[10]. It changes who has to prove what. It still applies only once a case is brought to tribunal, so its reach depends on how many workers bring claims ^[10].

The manifesto promised more than either proposal. Labour pledged a single employment status of "worker" for everyone except the genuinely self-employed ^[13]. Today employment law has three categories (employee, worker, self-employed), while tax has two, employed and self-employed ^[5]. The government has outlined no plan to change tax status, employment lawyers say, so classifying people as self-employed stays more financially attractive ^[15]. The saving comes from the fact that the self-employed do not qualify for the minimum wage, holiday pay and other key benefits ^[16].

For an employer with a large contractor base, the question is whether to review contracts now or wait. The consultation opens this month ^[4]. A statutory rewrite needs parliamentary time that lawyers say has not been set aside ^[14]. On Glyn's account, the near-term risk is the reality test tribunals already apply ^[11]. The Deliveroo ruling turned on a clause the courts found genuine ^[7], so a substitution clause nobody uses gives weaker protection even under current law. Reviewing contracts this quarter costs legal time now. Waiting means defending the same contracts later, possibly against a presumption of worker status if that plan survives drafting ^[10].