In the first of our new guest blog series on insecure work, David Taylor and Simone Cheng (Senior Policy Advisers at Acas), explore the complex challenges of insecure work.

The Work Foundation’s UK Insecure Work Index is a very welcome new resource for the longstanding policy debates about insecure work. With a headline finding that, in 2021, around a fifth of the UK labour market (6.2 million workers) experienced severely insecure work, it underscores the need to find the right policy solutions for these controversial working arrangements.

Acas - the Advisory, Conciliation and Arbitration Service - aspires to make working life better for everyone in Britain. Every year we speak to millions of workers and employers facing problems in every type of working arrangement. Our insights on insecure contracts from calls to the Acas helpline, and from the impartial conciliation service we offer in every employment tribunal claim, tell us that they involve some unique workplace challenges.

Employee, worker or self-employed?

The employment status of most people is straightforward – they’re employees. Since employment rights are determined by status, most people can therefore be relatively certain about the rights and responsibilities that apply to their situation. Or, at least, they can seek out clear advice about them, and understand their legal options if a dispute can’t be resolved.

In insecure arrangements, however, employment status may be ambiguous. This can form a significant barrier to understanding what rights apply, having the confidence to assert them, and seeking legal redress where rights are denied. This ambiguity can stem from several factors, including:

• Misclassification – there’s wide scope to get status wrong, whether unintentionally or, in some cases, deliberately. We hear from callers aggrieved they’re nominally a ‘zero hours worker’ while working the same regular hours for one employer over a protracted time. Others, classed as ‘self-employed’, feel the significant control over when, where and how they work effectively makes them an employee. Advising on which status applies in such cases can be nigh on impossible without a legal ruling.
• The legal tests – in anyone’s book, the rules on status are complex and confusing, requiring intricate interpretation of the practical ins-and-outs of a working relationship. High-profile rulings in the platform economy, notably Uber BV v Aslam last February, offer some degree of clarity – at least, to those au fait with legal developments. But the complexity and evolving nature of case law remain significant barriers to understanding.
• The existence of two employment status frameworks – one status for tax, and another for employment rights, adds another twist. As a result, callers tell of their frustrations in trying to figure out just who to call for advice.

Resolution or retribution?

Even where employment status is clear, insecurity can undermine individuals’ confidence to question their entitlements, or indeed raise other concerns, at work. Helpline callers tell how they fear they’ll lose their working hours – be ‘zeroed down’ – if they raise an awkward question.

While there are legal protections against suffering detriment for asserting statutory employment rights, it’s not necessarily clear whether a loss of ‘non-guaranteed’ hours falls under that protection. Moreover, the prospect of a tribunal claim can seem less than reassuring if you’re not 100% sure you have the eligible status. This can stifle dialogue and resolution in the workplace.

Flexibility or security?

The implications of such experiences must, of course, be considered alongside wider evidence. In particular, survey evidence that many individuals positively choose insecure arrangements for the greater flexibility they can offer. At the same time, expressions of satisfaction may be a snapshot that shouldn’t necessarily be taken at face value.

Our helpline calls reveal that the risks of a flexible contract may not be clearly understood until an unexpected development brings home the precarious nature of the employment. This can be after months or even years in the job. Triggers here can include:

• a sudden change in employer behaviour – e.g. an unexpected reduction in ‘established’ working hours;
• a change in the worker’s circumstances – e.g. falling sick and being told there is no entitlement to sick pay; or being allocated different hours when returning.

Addressing the next two decades of insecurity

Gauging the right policy responses to these and many other questions raised by insecure work is far from straightforward. The Work Foundation’s new index, based on analysis of 20 years of data, helpfully takes a holistic view across three dimensions of contractual insecurity, financial insecurity and access to workers’ rights. Clearly, there are no simple answers to such a multifaceted issue.

Yet, with the cost of living crisis now upon us, and with those in insecure contracts especially vulnerable, the need for solutions has never been more acute. As a start, these must surely include:

• Greater awareness – of the pros and cons. Clear and widely accessed guidance can play a role in improving awareness of the risks, benefits and trade-offs in insecure arrangements before people enter them.
• Greater confidence – clearer protections could provide greater reassurance to assert rights and challenge poor practice in the workplace.
• Greater clarity – in the employment status framework. Recent new government guidance is highly welcome. However, the question of legislative reform will surely deserve renewed attention as insecure forms of work continue to evolve.

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