Volunteer Work, Inclusivity, and Social Equality

This chapter argues that current attempts in employment law to distinguish volunteers from employees on the basis of volunteer work’s civic, humanitarian, or charitable character are premised on overly narrow views of the moral significance of work. The chapter proposes that the law distinguish volunteer work from employment on the basis of the work’s merit inclusivity—inclusivity with respect to skill and ability. By offering people access to a broader range of social projects than their skills might offer in the labour market, merit inclusive volunteering opportunities can lessen the risk that skill and ability will confine people to particular social roles. Distinguishing volunteers from employees on the basis of merit inclusivity can thus create a more principled volunteer–employee legal boundary and can preserve legal space for work that lessens inegalitarian effects of the labour market on opportunities to participate in social life.

Dignity at Work

This chapter offers a justification of labour rights based on an interpretation of the idea of human dignity. According to the dignitarian approach, we have reason to organise social life so that we respond appropriately to the valuable capacities of human beings that give rise to their dignity. That dignity is a deontic status in accordance with which people are owed certain forms of respect and concern. Dignity at work involves treatment of people that enacts the ideal of solidaristic empowerment as it pertains to their life as workers. This requires that we generate feasible and reasonable social schemes to support each other in the development and exercise of our valuable capacities to produce in personally and socially beneficial ways. The spectrum of dignitarian justice goes from basic rights to decent working conditions to maximal rights to flourish in working practices that are free from domination, alienation, and exploitation.

The Contractualisation of Labour Law

This chapter explores the idea that labour law rests on ‘a contractual foundation’, and the idea that work relations today are ever more ‘contractualised’. Section 1 lays out some essentials of British labour law and its connections with the common law of contract. Section 2 explains what contractualisation is, not yet focusing attention on the specific context of labour law. The main claims are that contract is not a specifically legal device, and that contractualisation is therefore not a specifically legal process, even when the law is complicit in it. Section 3 shifts attention to the world of work, especially the employment relationship. Here the main ideas are that the employment relationship is not (apart from the law) a contractual relationship, and that all the norms of the employment relationship cannot therefore be captured adequately in a contract, legally binding or otherwise. Section 4 illustrates the latter point by focusing on the rationale and the limits of the employer’s authority over the employee. A contractual rationale yields the wrong limits. It gives its blessing to authoritarian work regimes and lends credence to the miserable view that work is there to pay for the life of the worker without forming part of that life. Throughout the chapter there are intimations of the conclusion drawn in section 5: that contractualisation, in the labour market at least, is a process that lovers of freedom, as well as lovers of self-realisation, should resist—or rather, should have resisted while they still had the chance.

Discrimination and Labour Law: Locating the Market in Maldistribution and Subordination

Labour law doctrine has fully incorporated discrimination, but labour law theory has not. Market ordering is labour law’s villain, but employment discrimination theory often casts market ordering as a victim needing rescue from employers’ irrational judgements or non-economic motivations. This chapter traces the tension by examining the place of bilateral employee–employer relationships in both domains, including alternatives that adopt divergent structural perspectives on, for instance, capitalism and white supremacy. An example of bridging the divide by decentring the market is offered. This occurs through a unified account of direct and indirect discrimination grounded in liberal egalitarian thought. Although addressed to the distribution of economic opportunity generally, the particulars of this account require interventions in discrete employee–employer relationships. Also considered is how the argument’s form—in which idealised market ordering is fundamental neither to the problem nor the solution—might extend to labour law’s concerns with workplace subordination, not only distribution.

Social Inclusion for Labour Law: Meeting Particular Scales of Justice

Social inclusion is argued to be a central foundation of labour law. However, scholarly contributions referring to this notion have not yet questioned what the normative account of social inclusion as a foundation of labour law should be. They base their arguments on various normative accounts—some on the account of minimum welfare; others on broader accounts that include voice and personal fulfilment—without seriously addressing the question at hand. But this question is highly pressing, given that numerous workers who are socially excluded according to socio-economic parameters are also located outside the confines of labour law or experience what Sen has termed as ‘unfavourable inclusion’. This chapter offers an account of social inclusion based on Nancy Fraser’s Scales of Justice, claiming that it should entail recognition, fair redistribution, and meaningful representation. It stresses that this account is in line with both social inclusion theory and with labour law, and shows how it captures the lives of various workers, including those who are in most need of such inclusion.

Legal Construction of Structures of Exploitation

This chapter argues that the prevailing understanding of workers’ exploitation in law and policy is unjustifiably narrow, and that the concept should not be confined to slavery, servitude, and forced and compulsory labour, nor should it be linked to criminalisation alone. Looking at the concept of exploitation in political philosophy, it advances an alternative conception. The literature analyses exploitation as taking unfair advantage of someone or taking unfair advantage of someone’s vulnerability, and develops opportunistic and structural accounts of exploitation. The focus of this chapter then turns to the role of the law. Building primarily on structural accounts, it examines exploitation that consists in a special vulnerability created by law and the taking advantage of the vulnerability by violating workers’ rights or other human rights. It considers four examples of groups of workers who are in this position: migrant workers, domestic workers, prison workers, and care workers in zero-hours contracts. The chapter suggests that it is not only private employers who have to be held accountable for exploitation, but also state authorities themselves.

Structures of Exploitation

Although the term ‘exploitation’ is widely used, there is little agreement about the precise cut-off point between exploitative and non-exploitative relations. The chapter argues that the reason for this is that background structural factors need to be taken into account in determining whether or not a relationship is exploitative, and it is likely that there will be differing moral assessments of those background factors. Furthermore, although background conditions affect whether a relation is exploitative, they do not fully determine whether the ‘fairness’ or ‘flourishing’ norms intrinsic to exploitation are violated. The argument is illustrated through discussion of the Marxist and Perfect Market approaches to exploitation.

Is the Contract of Employment Illiberal?

The authoritarian character of many work relationships raises the question whether the legal institution of the contract of employment is inherently opposed to liberal values such as support for civil liberties, freedom, and equality before the law. Having analysed the nature of the relation of subordination that lies at the heart of employment relations in terms of practical authority, the chapter argues that there is an inherent tension between the legal structure of employment and guarantees for the exercise of civil liberties and the principle of equality before the law, but that any tension with the value of positive freedom or freedom from domination is contingent on the particular circumstances of the case. Having rebutted an objection to the relevance of liberal values to a moral assessment of a private contractual arrangement such as employment, the chapter concludes by arguing that a prime focus for labour law should be the reduction or elimination of the inherent conflict between the contract of employment and liberal values.

Introduction: Does Labour Law Need Philosophical Foundations?

This chapter examines the relationship between labour law and its philosophical foundations. It suggests that it is essential to stand back from political compromises, which are often the subject of labour law scholarship, to consider the key attributes of the subject and its foundational goals and principles. It proposes that we need a normative account of labour law in order to assess its shortcomings and propose reforms, but also that the most important reasons for pursuing a philosophical agenda concern the continuing existence of the subject of labour law and the paradigm around which it is built. Having made the case for the importance of examining philosophical foundations, the chapter considers methodological challenges in using political theory. We finally turn to some central values that underlie labour law and which constitute the themes of this book—freedom, dignity, and human rights; distributive justice and exploitation; workplace democracy and self-determination; social inclusion—and summarise the chapters of the book.

Civic Republican Political Theory and Labour Law

Several justifications are cited in the academic literature in favour of common law and statutory intervention in the field of labour law. However, these justifications have been criticised for ignoring the realities of the contemporary labour market and for even bothering to undertake such an exercise as attempting to identify a theoretical explanation for the discipline in the first place. One must therefore ask to what extent traditional justifications for the legal regulation of the employment relationship have become frayed at the edges as a result of changes in underlying political, social, economic. and industrial conditions over the past half century. This chapter seeks to contribute to this debate by demonstrating how an account of justice based on ‘non-domination’ grounded in contemporary civic republican political theory can prove helpful in shedding new light on the rationales for labour law intervention in the twenty-first century.