Rethinking Legal Taxonomies for the Gig Economy : Tax Law, Employment Law, and Economic Incentives

Recent labour market changes, from an increase in the number of individuals running their own business to the fragmentation of traditional employment relationships into short-term, intermittent work for multiple engagers (“gigs”) have brought a host of challenges for regulators. The law struggles not least because long-established taxonomies used in tax and employment law are coming under increasing pressure. Legal regulation in these areas divides the labour market into a number of predetermined categories, to which benefits and obligations (rights and duties) are then attached. The tests determining into which category an individual falls are unclear and too easily manipulated. In particular, there is a real lack of clarity as to how categories in employment and tax law should map onto each other.In one sense, there is little new about these challenges: classification has been the holy grail of legal labour market regulation since the inception of employment law. With technology increasingly facilitating easy shifts between legal forms in response to skewed incentives, however, the underlying questions have become more salient than ever.In order to put forward a framework for a more coherent approach, this article is structured as follows. A first section explores recent market labour trends using evidence from the Labour Force Survey, providing key evidence of changes in rates of self-employment and incorporation, as well as exploring why these changes may have occurred. We then turn to the policy incentives underpinning the different regulatory regimes of tax and employment law as a starting point for reform principles. Section II considers these competing objectives with a view to distilling a set of principles to guide reform. Section III, finally, applies these norms to the UK context, suggesting how reform should be oriented towards a reshaping of legal taxonomies in line with each regulatory system's underlying goals