Faculty of law blogs / UNIVERSITY OF OXFORD

Classifying Gig Workers under the Coordination-Risk Bargain: A Singapore Perspective


Lance Ang
Lecturer at the School of Law of the Singapore University of Social Sciences


Time to read

3 Minutes

Much has been written about how employment law today fails to accommodate the multiplicity of non-standard employment relationships in the gig economy. However, what is more controversial is the basis of according gig workers recognition under employment law. In my new articleThe Legal Classification of Human Capital in “Markets, Hybrids and Hierarchies”’, I argue that such recognition is justified in order to ensure that platforms internalise the relevant economic risks which are commensurate with their capacity to coordinate the use of labour inputs under such hybrid work arrangements, instead of externalising these economic risks onto workers and the community (ie the ‘coordination-risk bargain’). Such risks depend on the nature and level of the gig worker’s dependence on, and subordination to, the platform. This coordination-risk bargain provides the basis of the regulation of different work arrangements across ‘markets, hybrids, and hierarchies’.

A Unified ‘Worker/Employee’ Category?

In this regard, many have questioned the trinary classificatory framework under section 230(3) of the UK Employment Rights Act 1996, which distinguishes between employees, ‘limb (b)’ workers and self-employed persons. ‘Limb (b)’ workers, as defined under section 230(3)(b) of the UK Employment Rights Act 1996, are workers who perform work for a business under arrangements other than an employment agreement. Such workers are entitled to a narrower sub-set of protections as compared with employees. Notably, the UK Supreme Court in 2021 found that Uber drivers were ‘limb (b)’ workers. The UK Labour Party, for example, has proposed enacting a single ‘worker’ status in order for all workers to receive the same basic employment rights. Similarly, the recent provisional agreement on the proposed EU Platform Work Directive provides for Member States to establish a presumption of employee status for platform workers at a national level ‘when facts indicating control and direction, according to national law, collective agreements or practice in force in the Member States and with consideration to the case-law of the Court of Justice, are found’.

Such approaches have the benefits of mitigating the risks of misclassifying gig workers as self-employed persons. However, they risk being overly inclusive in failing to draw important distinctions amongst the variety of different work arrangements that parties may enter into across ‘markets, hybrids, and hierarchies’. If a unified worker/employee status is adopted for different categories of workers regardless of the nature of work, it is likely that further carve-outs would have to be created to match the application of different employment protections to different types of workers on account of their varied nature of work.

In this regard, the proposed EU approach seeks ‘to ensure that platform workers fully enjoy the same employment rights as other workers in accordance with relevant Union law, national law and collective agreements’. However, it is questionable whether they should receive the same employment rights when, as explained further below, the nature of the coordination-risk bargain is different for both categories of workers. For example, platform workers should arguably not receive employment rights such as paid leave, unfair dismissal protections, redundancy payments and minimum notice periods. Such rights are intended to address the specific vulnerabilities that employees face from their dependence on a single employer. 

In contrast, the Advisory Committee on Platform Workers in Singapore has proposed that gig workers should not be categorised as employees, but should be covered by the relevant employment protections they would otherwise not receive if they were categorised as self-employed persons, such as work injury compensation. This was followed by a proposed new distinct category for ‘platform workers’ that is separate from employees and self-employed persons and covers individuals who enter into a contract for service with a platform and are subject to ‘control’ by the platform with respect to the performance of the service.

Reasons for a ‘Hybrid Worker’ Category

My article argues that the ‘coordination-risk bargain’ provides the basis of the recognition of an intermediate category of gig workers by recognising that the nature and extent of coordination and risks that employment and gig work involve remain distinct. It recognises that while gig workers are not genuinely self-employed in so far as they are subject to control by the platform, there remains a key distinction between an employee and a gig worker in so far as an employee is bound to expend his or her own labour in the service of the employer, while gig workers have greater capacity to market their labour to different parties. Employees are, therefore, subject to a higher level of dependence and subordination on the employer. As a consequence, the coordination-risk bargain and, in turn, the extent to which the firm should internalise the economic risks for employment and gig work are not the same.

On this basis, an intermediate category of gig workers, such as the one proposed in Singapore, is arguably preferable to the proposed EU approach as it serves to distinguish amongst different contracting arrangements across ‘markets, hybrids and hierarchies’. It recognises a distinct category of dependent and subordinate workers who do not operate businesses on their own account but who expend their labour to platforms, and who are distinct from employees only in so far as they do so under non-standard employment arrangements. At the same time, it avoids false equivalence between employees and gig workers, which is the key weakness of a unified ‘worker/employee’ category.

Lance Ang is a Lecturer at the School of Law of the Singapore University of Social Sciences and a Research Associate at the Centre for Business Research, Judge Business School, University of Cambridge.

The full article can be read here.


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