Precarious Norms for Precarious Workers

Abstract

Flexibility is the golden word of modern labour market policy. In principle, flexibility seems to deliver the best of all worlds: for employers, to match labour supply and skills with rapidly changing demands; and for workers, to achieve a work–life balance, particularly where they have substantial child care responsibilities. The real life experience is very different. "Flexibility" itself is a flexible term, and its users are often not precise as to which meaning is being referred to. The gains to employers in matching supply and demand have been translated directly into costs to workers. This shift of the costs is true across the European Union (EU): more than two thirds of those involuntarily in part-time work are in low-quality jobs - for example, low-paid, low-productivity jobs that do not offer job security, access to training, and career development opportunities (Commission of the European Communities (CEC), 2002b). It is no accident that the non-standard workforce is made up predominantly of women. Women's continued primary responsibility for child care, together with intense pressure to provide or contribute to the household income, leaves them with comparatively few options for paid work. This dilemma is exacerbated by the United Kingdom's long-hours culture: the greater rewards open to men working long hours simply reinforce the gendered patterns of paid work and child care. Drawing on neoliberal economic dogma, the Thatcher and Major Governments legitimated exclusion on the grounds that non-standard workers could only be cost-effective to employers if their terms and conditions of employment were kept low (Fredman, 1997b). Since 1997, a "Third Way" has been in the ascendant, both in the EU and under New Labour in the United Kingdom (Fredman, 2004b). Rejecting the neoliberal view that employment standards impede job creation by creating burdens on business, the "Third Way" views employment rights as facilitating productive and committed non-standard workers. However, there remains a deep ambivalence on the part of policy-makers as to the extent to which the benefits employers gain from flexibility should carry with them social responsibilities. Much rhetoric is expended within New Labour ideology on the mutuality of rights and responsibilities, and on the importance of family-friendly norms, but the more powerful voice is that of competitiveness; and the apparent match between "family-friendly" and flexibility soon evaporates. The result has been that diluted EU norms have been further diluted in their transposition into domestic law. The position of non-standard workers remains precarious.

The aim of this chapter is to examine the development of these precarious norms for precarious workers from a specifically gendered perspective. Women have always formed the bulk of the precarious workforce, and even now the numbers of men in this form of work are small. The chapter critically evaluates the contribution of the "Third Way" policy objectives and the ways in which these objectives are refracted through the prism of the courts. The first part of the chapter examines the gendered dimension of precarious work through workforce statistics. The second part briefly rehearses legal developments, before turning more specifically to New Labour's attempt to refashion labour law to be more inclusive of precarious workers. The third part focuses on the legal understandings of the concept of a "worker," examining particularly mutuality of obligation and the requirement for personal service, while the final section considers the ways in which the equality concept has been used, and its interaction with substantive rights.