Yes - says the High Court. The recent case of Simply Learning Tutor Agency Ltd and others -v- Secretary of State for Business, Energy and Industrial Strategy concerned a group of companies operating a business model where they connected self-employed tutors with families who needed their services.
The companies argued that, because the tutors were all self-employed contractors, various statutes and regulations (including the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003) did not apply.
The companies had been notified - on a number of occasions - by the Employment Agencies Standards Inspectorate (EAS) that they fell within the scope of the legislation, and so the companies requested that the matter be judicially reviewed in order to determine the matter. In particular, the companies argued that they fell neither within the definition of an “employment agency” (usually referred to as a recruiter or headhunter) or “employment business” (commonly known as a temp agency), and, as such, they should not be bound by the legislation concerning the supply of labour.
The High Court disagreed. It noted that the term “employment” for the purposes of this particular legislation was expansive and included "employment by way of a professional engagement or otherwise under a contract for services". This in turn meant that the definition covered tutors providing their services on a self-employed basis as independent contractors, and so the analysis of the EAS was preferred.
The way in which the High Court approached the definition of “employment” in the legislation is an interesting example of judges being required to overlay existing legislation onto innovative tech-based business models, and one which is likely to continue.
"...the fact that the language is intended to comprehend a wide and inclusionary range of ways of being a "worker" is even more obvious when one considers [that the legislation is] intended to protect, not only those seeking work through employment agencies or businesses, but also those seeking to obtain the benefit of that work through such businesses, and vulnerable people who may be the subjects of such work."