Judging in the Common Law Tradition: Sir Patrick Elias on Employment Status

Abstract Sir Patrick Elias occupies a unique position in modern British employment law as an academic, practitioner and judge during the period of its expansion from the 1970s to the present day. His insistence on the need for conceptual clarity in legal reasoning has helped prevent the law falling into atrophy and confusion during a time when the volume and granularity of statutory texts was increasing year on year. His employment status case law, while clear, is nonetheless cautiously expressed and is consistent with an approach more widely shared across the British judiciary, of avoiding purpose-orientated reasoning when interpreting legal concepts in their statutory context. A tendency towards formalism in legal reasoning does not necessarily make the law more predictable or straightforward to apply. The emergence of a highly elaborate jurisprudence on the employment status question has fuelled litigation over matters which could have been settled more straightforwardly had a more policy-aware approach to interpretation been adopted. There are historical precedents for retiring the courts from the task of determining employment status to which policy makers might wish to give due consideration.