Do IT Workers Need Labour Rights? A Critical Look at Gig Contracts as an Intermediate Employment Model in Ukraine

by Yana Simutina, Visiting Professor, University of Bristol Law School

(Photo: UNDP in Ukraine/Internews)

The digitalisaton and emergence of the gig economy has led to significant changes in employment and labour relations around the world. As businesses seek more flexible and cost-effective solutions for hiring workers, policymakers are considering adapting the regulatory framework to the challenges of new forms work. Ukraine, a country undergoing economic and social transformation, has experienced growth in the digital sector over the last decade (especially before the full-scale Russian invasion). Against this background, a new legal framework for IT companies is called Diia.City was launched in 2021 by adopting the Law on Stimulating the Development of the Digital Economy in Ukraine (LSDDE). The LSDDE introduced new legal concepts such as the ‘gig contract’, which is not legally defined or applied in other jurisdictions or EU law. In any case, the use of the term ‘gig’ is associated with digital platforms and fragmented activities carried out outside the framework of traditional forms of employment, with irregular or additional income without labour protection. Given that the ‘gig contract’ category has a rather negative connotation from a labour law perspective, several questions arise. First, what are the potential benefits and challenges of this employment model? Secondly, in a broader context, are gig contracts a sustainable solution to the challenges of employment relations in the digital economy, or do they further blur the boundaries between civil and labour law? (more…)

Risk assessment at work during the coronavirus pandemic and while ‘living with’ COVID-19: What can England learn from Sweden?

by Peter Andersson, University of Gothenburg and Tonia Novitz, University of Bristol Law School

The crisis which arose in March 2020 regarding the coronavirus pandemic immediately centred on risk. Predictions had to be made swiftly regarding how the virus would spread, whom it might affect and what measures could be taken to prevent exposure, including in the workplace. As part of a broader Swedish Research Council project (2018 – 2022), we have conducted a comparative study of English and Swedish responses to the pandemic, focussing on their treatment of risk.

It was apparent that the two countries took very different approaches to COVID-19. For example, ‘lockdowns’ like those implemented in the UK were not imposed in Sweden, although Swedes were requested to work at home as much as possible.

We recognise that risk assessment plays two key roles. One is pre-emptive, namely to prevent harms rather than only compensating for such harms after the fact. The second role is defensive, protecting an employer from liability by demonstrating that due care was taken. We have found that the Swedish approach is more pre-emptive, while in the UK risk assessment is used more defensively in criminal and civil litigation.

The pre-emptive role of risk assessment, or the scope of any ability to prevent harms, is inherently limited by who is identified as the legitimate subject of risk assessment: ‘employees’, ‘workers’ or ‘independent contractors’? This has been the subject of a judicial review action brought by the Independent Workers’ Union of Great Britain (IWGB) against the Secretary of State for Law and Pensions. A significant outcome of the judgment delivered by Chamberlain J, which sought to implement the European Union (EU) Framework Directive on Health and Safety and the Personal Protection Equipment (PPE) Directive, was the extension of entitlement to PPE to so-called ‘limb(b) workers’ (as designated under UK statute) as opposed to merely ‘employees’. Moreover, the judgment recognised the right of ‘workers’ to refuse to work where there is serious or imminent danger under section 44 of the Employment Rights Act (ERA) 1996 without detriment. However, only those workers deemed ‘employees’ could claim protection from dismissal under section 100 of the ERA.

By way of contrast, Swedish work environment law has long recognised that a broader range of persons qualify for health and safety protections as ‘employees’ or ‘equivalent to employees’. A specific project was created extending protections to self-employed platform workers. After legal challenges in which employers successfully argued that they did not have ‘employer responsibility’, the Swedish Work Environment Authority abandoned this scheme, but a proposed EU Platform Work Directive (if adopted) may enable its reinstatement. In this sense, EU law has a significant effect on the coverage of risk assessment, which raises important issues regarding protection of those at work in the UK post-Brexit.

There is also a vital difference between England and Sweden in terms of the statutory funding and powers of relevant supervisory bodies. While both countries have comparable statutory agencies engaged in promoting assessment of risk by employers and its amelioration, the UK Health and Safety Executive (HSE) and the Swedish Work Environment Authority (SWEA), there were notable disparities between their capacities in the context of the pandemic. Both actively advocated that employers undertake additional risk assessment during the pandemic. However, funding of the HSE had declined dramatically in the years preceding the pandemic (from £331 million in 2009/10 to £226 million in 2019/20), such that a temporary injection of £14 million in May 2020 could not readily revive its supervisory functions, nor did the HSE intervene with detailed advice as regards what risk assessment in English workplaces should entail. Instead, it appeared that the HSE had ‘gone missing’. It was the English Government that issued sometimes questionable guidance on what was ‘COVID-secure’, with prominent advice from what was ‘Public Health England’ (since October 2021 replaced by two bodies, the UK Health Security Agency (UKHSA) and the Office for Health Improvement and Disparities, which places health-related issues more directly under UK Government control). Risks identified in such guidance tended to be solely physical and not psycho-social, despite forms of stress created by combined teleworking and home schooling, especially for women. It remains probable that in England, few civil and criminal cases will be brought, given that employers did follow the bare bones of this guidance. In this sense, risk assessment in England has served its defensive function for employers, but the rates of deaths and long-COVID now being reported suggest that the workforce did not go unharmed.

Finally, there is a significant difference between England and Sweden regarding the extent of collective worker representation promoted in OSH. In publications issued by the HSE during the pandemic, recommending that employers ‘talk to’ their workers, statutory requirements to inform and consult workers were glossed over. By way of contrast, the SWEA received more complaints and carried out more inspections, prompted by the active statutory role which trade union representatives play. There are wider ranging entitlements in Sweden to call for a stoppage of work until OSH issues are addressed and these were deployed in the context of the COVID-19 pandemic on 328 occasions.

In February 2022, most COVID-19-related public health restrictions ended in England and Sweden, despite criticism from scientists and medical professionals, giving further cause to reflect on different responses to management of risk assessment and their effects. While coronavirus variants spread globally and other issues concerning viral contagion remain, we consider there remain compelling arguments for legal, policy and institutional reform that deserve continued attention.

See further:

International Labor Solidarity in a Time of Pandemic

By Dr Manoj Dias-Abey, Lecturer in Law (University of Bristol Law School)

As governments have imposed physical distancing measures to slow the spread of the virus, the engines of global economic production have ground to a standstill. Almost half of humanity is under some form of lockdown. No one knows for certain the long-term impacts, but the IMF predicts that global output per head will shrink by 4.2 per cent this year, almost three times more than the amount logged in 2009 during the global financial crisis. In some cases, the once-creaking welfare systems of rich Global North countries have responded with remarkable speed, announcing a range of measures to keep businesses afloat, protect employment, and provide income support to those who have lost their jobs—although Alexandria Ocasio Cortez has pointed out that the American version, true to form, benefits corporations more than individuals. As Pankaj Mishra recently put it, “it has taken a disaster for the state to assume its original responsibility to protect citizens.” However, citizenship is the fulcrum upon which this newfound social solidarity turns. Workers in the Global South who have lost their jobs as a result of COVID-19 have been left destitute and homeless with almost no support forthcoming from their governments or the international community. Similarly, many migrant workers in the United States fall outside the purview of the state welfare aid. (more…)

The IEL Collective Symposium II – Disrupting Narratives on International Economic Law: Theory, Pedagogy and Practice

By Dr Clair Gammage & Dr Amaka Vanni, For and on behalf of the IEL Collective

In 2019, a group of scholars in the discipline of International Economic Law (IEL) launched the IEL Collective to provide a space for critical reflections of the regulation and conduct of states, international organisations and private actors in economic governance within and across state boundaries. International economic law (IEL) as an arena of scholarship, policy and practice has developed exponentially over the past three decades, evolving from a sub-field of public international law into a multi-layered, highly specialised discipline of its own. As a field of study, IEL encompasses a broad range of issues relating to the law, regulation and governance of the global economy, including trade, investment, finance, intellectual property, business regulation, energy and competition law. It is a discipline that intersects with other disciplines, such as international and domestic labour law, human rights, and environment as recognised by the United Nation’s 2030 Agenda for Sustainable Development. However, in the discipline of IEL there remain significant questions over the plurality and diversity of methodologies, voices and viewpoints. (more…)

Centre for Law at Work Launched

By Dr Jennifer Collins, Lecturer in Law, and Prof Alan Bogg, Professor of Labour Law, Centre for Law at Work (University of Bristol Law School).

Centre for Law at Work Launch Event, Law School, University of Bristol © Bhagesh Sachania

On Thursday 28 June the Bristol Centre for Law at Work was launched. The Centre is based in the Law School, with Professors Alan Bogg and Tonia Novitz its founding Directors. It is supported by scholars from across the Law School who will come together to reflect upon legal issues relating to work and its regulation. Adopting an inter-disciplinary approach, the Centre aims to advance scholarly analysis of work-related issues, and to generate innovative perspectives. In so doing, it aims to shape policy at national, transnational and international levels using evidence-based interventions to influence current political debates. Centre members have already made high profile contributions to the recent Taylor Review of modern working practices.

A very successful launch of the Centre was held at the close of the first day of Professor Alan Bogg and Dr Jennifer Collins’ workshop, Criminality at Work. Professor Mark Freedland, opening the Centre, commented on Bristol’s global reputation in work-related legal scholarship. He was also deeply impressed by the excitement and enthusiasm across the University for the objectives and activities of the Centre for Law at Work.  Professor Paddy Ireland, Dean of the Faculty of Social Sciences and Law, commented that the Law School has attracted fantastic interdisciplinary scholars who will contribute to the work of the Centre. The Centre will build links across the wider Faculty, based around the Faculty Research Group on Work. It will also connect with a global network of academic centres through its formal affiliation with the Labour Law Research Network. (more…)

Sex Work, Labour Unfreedom, and the Law

By Dr Katie Cruz, Lecturer in Law (University of Bristol Law School).*

On 2nd June, sex workers and activists gathered globally to mark the struggle for sex workers’ rights. International Sex Workers Day is just one day of the year dedicated to the struggle for sex workers. Activists gather on March 3rd to mark International Sex Worker Rights Day and on December 17th to mark International Day to End Violence against Sex Workers. These dates occur because of the historical and ongoing violence against, and exclusion of, sex workers. Sex workers are subject to interpersonal forms of violence, from police officers and clients, and the structural violence of criminal justice and immigration institutions. They are criminalized and affected by often-punitive anti-trafficking laws and policies, and they are subject to heightened immigration controls, including the criminalization of movement and working. The Tory government’s hostile environment has created additional layers of institutionalised insecurity for many migrant sex workers, including restrictions on access to housing, healthcare, education, and banking services.

In a recent article I wrote for Feminist Legal Studies, I argue for a Marxist feminist methodology capable or describing and opposing these intersecting exclusions and oppressions as they apply to migrant sex workers in the UK. However, this method can be used to understand the precarious living and working conditions of all (sex) workers. In this post, I make some remarks in relation to citizen sex workers in the UK and Jamaica, where I am currently conducting fieldwork with Prof Julia O’Connell Davidson and Dr Jacqueline Sanchez Taylor. (more…)

Testing the boundaries of fraud by abuse of position

By Dr Jennifer Collins, Lecturer in Law (University of Bristol Law School).

7306229-seasonal-workersThe Court of Appeal has delivered an important judgment in R v Valujevs [2015] 3 WLR 109, on the scope of fraud by abuse of position under section 4 of the Fraud Act 2006 (on which see J. Collins, ‘Fraud by Abuse of Position and Unlicensed Gangmasters’ (2016) 79 Modern Law Review 354).  The importance of ensuring legal certainty in drafting a general fraud offence was emphasized when the Fraud Bill was debated in the House of Commons a decade ago (Hansard, HC 12 June 2006, col 549).  Dominic Grieve MP’s concerns that fraud by abuse of position was ‘too widely drafted’, and would lead to ‘a catch-all provision that will be a nightmare of judicial interpretation’ (Standing Committee B, 20 June 2006, col 25) remain relevant to what has resulted in sections 1 and 4 of the Fraud Act 2006.  Does R v Valujevs shed new light on the principled operation of the offence?  And is the Court of Appeal’s interpretation in line with concerns at the Committee stage to safeguard vulnerable categories of persons (Standing Committee B, 20 June 2006, col 26)? (more…)

Brexit and Worker Rights

By Prof Michael Ford QC, Professor of Law (University of Bristol Law School).

walker-recall-workers-rights-sign-matt-schilder-630x4001

It is now pretty well-known that most of the employment rights in the UK are guaranteed by EU law—the principal exceptions are unfair dismissal and the national minimum wage —as I explained in a recent advice for the TUC. UK legislation on race discrimination, sex discrimination, equal pay and disability discrimination may have pre-dated EU Directives in these areas, but EU law led to protection against other forms of discrimination, such as detrimental treatment owing to age, sexual orientation and religion and belief. Over the years EU law has greatly supplemented or overwritten the domestic regime, almost always in favour of workers’ rights – removing limits on damages, recognising that pregnancy discrimination did not need a comparator, changing rules on the burden of proof, allowing equal pay claims for work of equal value, protecting against harassment and post-employment victimisation. I could go on.

Now extending far beyond discrimination, the EU-guaranteed rights include almost all the working time protections, including paid annual leave and limits on working hours; the protection of agency, fixed-term and part-time workers; rights on the transfers of an undertaking (extremely significant in a world dominated by out-sourcing); many rights to information and collective consultation; the most important health and safety regulations; the right to a written statement of terms of employment; protections in insolvency derived from the EU Insolvency Directive, which led to important extensions to the state guarantee of pension benefits and protection of other claims where the employer is insolvent (no doubt to be in play in relation to British Home Stores); and EU data protection law, the driving force behind the Information Commissioner’s Employment Practices Code, providing some controls over the monitoring and surveillance of workers. (more…)