Socio-legal perspectives on agency work: Liminal employment, innovation and the crisis of UK labour law

UK labour law is in turmoil. Large numbers of people are today working in the UK economy in ways that align with neither side of the traditional binary of employment and self-employment that shaped Western labour markets in the decades after 1945. Political and judicial discourse has referred to this segment of the labour market as the 'gig economy', 'atypical work', 'false self-employment' or 'casual work', among other terms. In light of its shared characteristic of falling between and beyond the categories of traditional employment and self-employment, I refer to this labour market segment as liminal employment. Even 'freelancers' and 'consultants', though usually better-paid than the average atypical worker, are part of this highly heterogenous category. In my thesis, I explore how work relations that are mediated by employment agencies, umbrella companies and other private labour market intermediaries - which comprise a wide range of liminal employment - have been constructed and shaped by three professional communities since the 1970s: doctrinal labour lawyers, labour market institutions and representatives of the 'recruitment industry' themselves. My study adopts these three perspectives, all of which are key to grasping current trends in the world of work, in turn. It asks how the doctrinal community and the regulatory community have largely insulated agency-mediated work from employment and labour protections since the mid-1970s, and how the business community has creatively engineered this form of work in such a way that it could permeate most sectors of the UK economy.

My thesis takes a socio-legal approach to these questions that is inspired by the empirical tradition of labour law research and by recent discussions in socio-legal theory. I have employed three sets of empirical material. My qualitative reading of UK case law relating to agency-mediated work stretching from 1975 to 2018 is the core of my analysis of the doctrinal perspective. 29 semi-structured interviews that I have conducted with employment solicitors and barristers, recruitment industry representatives, trade union officials, state enforcement officers and other experts with relevant practical experience dealing with agency-mediated work form the substance of my analysis of the regulatory and business perspectives. I have supplemented my interview material with government, trade union and industry reports that shed light on relevant time periods and developments that my interviews had not sufficiently covered.

My thesis aims to contribute to the English-language literature diagnosing a crisis in the field of labour law on the one hand, and to recent scholarship in the economic sociology of law on the other hand, which I understand at once as a distinct set of questions regarding the linkages between law, economy and society and as a pluralist theoretical framework seeking to answer them. In conversation with the crisis of labour law literature, my thesis traces the evolution of the legal framework for determining the employment status of atypical workers in the UK, particularly agency workers, from the 1970s to today. It also explores exactly how agency-mediated work has been constructed - by judges, state regulators, trade unions and employment agencies - as largely outside the scope of employment and labour protection. It offers, finally, a reading of the crisis of labour law as a growing tension between the doctrinal and regulatory perspectives on the one hand, for which agency-mediated work has remained largely invisible, and the business perspective that has designed stable categories by which this form of work can be offered and sold. Historicising the discourse of a crisis of labour law, I further develop the hypothesis that this formalisation of liminal employment is intimately linked with the economic priorities of the current historical phase, which has been to stimulate production rather than consumption.

I probe these tendencies further by drawing on the economic sociology of law, which allows me to go beyond more established socio-legal approaches by way of its sensitivity to processes of market-making - and more widely through its systematic acknowledgement that legal, social and economic phenomena need to be analysed both in their interrelation and in their distinctiveness. In relation to this field of scholarship, I seek to contribute my conception that professional communities construct distinct ways of relating to the dimensions of the legal, the social and the economic. Recent contributions to this literature help me formulate how the doctrinal, regulatory and business communities have each cohered around a specific way of relating to these dimensions of reality. Alongside the growing tension between the doctrinal and regulatory perspectives and the business perspective on agency-mediated work, the ways in which each professional community has positioned itself in relation to the econo-socio-legal have produced tensions within each community that have disturbed its internal stability. Since the late 2000s these disturbances have seemed to uncover elements of the doctrinal, regulatory and business perspectives that had previously been unspoken, which includes the recruitment industry's fundamental reliance, for its success, on an ongoing transformation of social conceptions of work. On this basis, I argue that the formalisation of liminal employment has been a simultaneous process of market-making and law-making.

I conclude my thesis by reflecting on the emancipatory possibilities that the smouldering crisis of labour law might offer. These may include the repurposing of existing categories for transforming the employment/self-employment binary, which is the foundation on which the contemporary organisation of work relations is built. My thesis warns, on the other hand, against considering any material perspectives on agency-mediated work and other forms of atypical work in isolation when developing reform proposals and political strategies.