THE CONCEPT OF ‘EMPLOYEE’

The concept of ‘employee’ is used to decide the scope of labour laws and is therefore crucial for employers and employees. Courts have developed tests and lists of factors to decide who is an ‘employee’. The chapter critically reviews these tests, first the preliminary tests used to separate employees from volunteers, interns, prisoners, and other such groups, and then the tests used to distinguish between employees and independent contractors. The chapter argues that the tests have to be connected to the purpose of labour laws, and shows that some of them are connected but others are not. It then discusses judgments from different countries where the courts have employed a purposive approach, showing the usefulness of this approach but also how it can be taken a step further. Finally, the chapter discusses some legal techniques which have been adopted by some legislatures and have a significant potential to minimize misclassifications.