Work on Demand at the RebLaw conference
Lawyers sometimes get a bad rap. Whether seen as making matters more costly, or overly complex, and therefore out of the reach of, or even of harm to, the average person ‘on the street’, ‘getting the lawyers in’ may often be viewed negatively. However, many become lawyers or legal scholars in order to do just the opposite. RebLaw Scotland, a network, founded by trainee solicitors Mairi McAllan, Katy Macaskill and Seonaid Stevenson, is firmly in the latter camp. Their conferences, which have twice now partnered with the University of Glasgow School of Law, bring together aspiring student lawyers, legal professionals, academics and activists who share the vision of ‘law as a tool of social justice.’
At this year’s conference, held on a sunny Saturday in February, the tone was set as the conference was opened by well wishes from Glasgow Law School alumna, First Minister Nicola Sturgeon. The First Minister, who self-identifies as a rebellious lawyer, encouraged others to pursue a similar path via a video-link. The schedule attested to the diverse range of spheres in which rebellious lawyers are making an impact, from children’s rights, public interest and strategic litigation, housing, migration, equality, to criminal justice.
On behalf of the Work on Demand (WOD) team, Eleanor Kirk joined a panel discussion on Workers’ Rights in the Gig Economy. Eleanor was teamed up with two legal professionals from Thompsons Solicitors. Michael Briggs explained the key legal tests relating to employment status, how employers were trying to evade liability and some of the high-profile challenges from workers. Dee Flanigan offered a strategic take on how the human rights implications of trade union organisation and action. Eleanor then gave some insight into the WOD project, its objectives and rationale.
As designed by principal investigator, Prof Ruth Dukes,[i] WOD aims to develop a new approach to labour law as an academic discipline. On the theme of ‘Rebellious Lawyering,’ and using ‘using law as a tool for social justice,’ WOD has the ambition of returning labour law to its critical tradition, and to re-orientate our understanding of the legal regulation of working relationships, the relationship between the labour law, economy and society and so, to drive towards more democratic working relationships and decent work for all through legislative change and institutional innovation.
WOD is a response to an increasingly evident crisis of labour law concerning the continued viability of systems of labour law that are protective of workers’ interests. Academic labour law has a critical tradition, aiming to democratise working relationships, and to address exploitation. However, as an academic subject, and in terms of influence over policy, it is of declining influence. The law is increasingly imbued with economic objectives, and beholden to notions of the primacy of ‘the market’, as immovable and untameable, and to neoliberal values fetishizing of flexibility in labour markets in particular. Collective rights have been progressively weakened over a period spanning five decades. During the same period, while individual rights have undergone a period of expansion, their implementation was soon followed, from around the late 1990s, by successive reforms to discourage people from enforcing them through employment tribunals (e.g. costs, statutory procedures, fees). We have a peculiar situation of a largescale expansion of individual employment rights, at the same time as increasing attempts to stop people from using them.[ii] Coverage has also narrowed, with fewer people being protected as ‘employees’. Income inequality is growing, we have rising levels of in-work poverty, and despite some greenshoots of organising, trade union membership dwells at historically low levels.
In this context, the contract for employment has reasserted itself as the primary legal institution. The contract was treated by early scholars of labour law as suppressed or emptied by the statute or collective agreement. However, with the gradual erosion of collective and individual rights, the contract reasserts itself. The WOD team will look closely at this key institution and consider it in all its forms, delineating what is unique about the likes of contracting for work in the gig economy and other settings and how a host of socio-legal and economic forces shape this relation. A key innovation of the WOD project is the characterisation of contracting for work as an instance of behaviour that is simultaneously economic, social and legal. With the aim of developing a new methodology for the study of work contracts, WOD will synthesise elements of economic sociology, sociology of law, and political economy into a new ‘economic sociology of labour law’, in order to fully understand contracting and its outcomes. The project also has a strong comparative dimension. WOD will analyse differences in forms of contract and contracting behaviour across jurisdictions and over the course of several decades. We will explore how various national, regional and sectoral labour constitutions have been configured over time. The WOD will be conducting research with policy makers, young workers and older cohorts in a number of sectors, in the UK, Italy and Greece.[iii]
WOD will also examine who shapes contracts. Not only have contracts reasserted themselves, but, they tend to be unilaterally imposed by employers, and specifically, drafted by HR managers who are likely to be conscious of applicable legal norms and act accordingly, perhaps with notions of ‘risk’ in mind, for example, sometimes to take the contract outwith the scope of protections. HR managers play an important role in filtering legal norms into workplaces, and may use strategies of risk avoidance and cost consideration, as much as any notion of ‘attracting talent’ or being an ‘employer of choice’. Some organisations take the ‘high road’ in this respect, and some the ‘low road’, but to date this has received little research attention.
Fundamentally, empirical research is needed which documents how markets, like laws, are socially constructed, examining how such processes lead to the construction of labour constitutions, meaning the conditions of labour, and the composite, of laws, rules, and norms at sectoral level and in different jurisdictions. There is at present very limited socio-legal research which explores how people are shaped by and re-shape legal, social norms and marketized discourses and structures.
A final word on the rise of the gig economy in context
The WOD project is concerned with broad trends towards precarious work, not only the gig economy, or bogus self-employment, which have recently captured public attention. On-demand work delineates a broader sphere of trends, shifts and pressures. However, the ‘app’ or ‘digital’ aspect gives ‘gig’ work a contemporary twist. It feeds a concern for the future of work, and ongoing standards- will this become the new normal? If a robot hasn’t taken my job in ten years, will I be ‘self-employed,’ and working through an app?
Labour law has been weakened, allowing ‘employers’ to opt-out of key rights, effectively side-stepping regulation. As the number of ‘self-employed’ and gig economy workers grows, we are reaching something of a crossroads with regard to employment rights: should we continue to allow them to whither, and exist more as myth than tangible thing to be enjoyed, or should we take decisive action to bolster them and their means of enforcement. A real opposition to the neoliberal path of travel associated with the Conservatives, but also Blair and Brown’s New Labour governments, has emerged with Corbyn and McDonnel’s Labour party, taking up the IER manifesto for labour law,[iv] which contains extensive reform proposals. Key to this are stronger individual rights, but more fundamentally, it seeks collective rights that would strengthen enforcement.
Successive Paths to Justice surveys[v] have highlighted that awareness of employment rights is low. Research with non-workers met at Citizens Advice Bureaux[vi] suggests that people tend to have only a vague idea of their rights. We have an extensive suite of rights, yet most people have difficulty accessing and enforcing them, and rarely appreciate their limitations or qualifications. This mythical character to rights can placate us into accepting unfair outcomes. The underlying issue is enforcement, hence why the ‘Taylor Review’[vii] and Government’s response,[viii] neither of which addressed this, is so disappointing. One of the insidious things about ‘ambiguous’ employment status is that it adds additional hurdles to workers’ confidence to contest abuses of their rights, as they are unsure whether those rights even apply to them. Taking a legal case, or getting active in a union is daunting enough when workers are certain that they have the right to do so, but can seem pointless where an ‘employer’ tries to deny such entitlements.
However, the other thing that the emergence of the ‘gig economy’ has done is to place a spotlight on employment rights in general and employment status in particular. New groups are emerging since 2016 to contest their employment in response to news coverage of gig economy abuses and high-profile court cases, such as foster carers organising with the IWGB union. Employment rights have for many decades been steadily undermined, leaving increasing swathes of the population vulnerable to mistreatment. Few people took much notice. The gig economy has drawn considerable attention, presenting stark new realities and a bleak prognosis for the future, which need to be better understood in aid of better regulation. The WOD project plans to be part of that solution.
~ Eleanor Kirk
[ii] Barmes L (2015) Bullying and Behavioural Conflict at Work: the duality of individual rights. Oxford: Oxford University Press.