Regulating Flexible Work

The rhetoric of 'flexibility' and its potential to empower workers forms a key part of employment policy at the EU level. This book examines the regulation of 'flexible' or 'non-standard' forms of work, which include part-time, temporary, and temporary agency work. It unites analysis of changing patterns of work with exploration of the policy debate about how such work should be regulated. McCann explores how workers in non-standard jobs have traditionally been excluded from the protection of labor law or treated less favorably than the full-time permanent workforce because labor laws have been designed around the 'standard' full-time permanent employee. Analyzing in detail recent United Kingdom legislative reforms and the wider context of the EU and International Labor Organization, this book shows how, although flexible working arrangements are now more strongly protected, they are not fully integrated into UK labor law. McCann ascribes the continuing disadvantage of flexible workers to the quest to maintain a 'flexible' labor market. She contends that the current balance between ensuring flexibility for employers, and ensuring minimum standards for workers is undermining protection for non-standard workers by allowing their employment rights to be derogated in the interest of labor market flexibility.

Deirdre McCann is a Research Officer at the Conditions of Work and Employment Programme of the International Labour Office in Geneva.

Table of Cases	p. xv
Table of Legislation	p. xix
List of Abbreviations	p. xxiii
Non-Standard Work, Flexibility, and United Kingdom Labour Law	p. 1
Introduction	p. 1
The Standard Model in United Kingdom Labour Law	p. 3
Defining 'Non-Standard' Work	p. 4
The Emergence and Dominance of the Standard Employment Relationship	p. 8
Non-Standard Work as a Form of Flexibility	p. 11
The Pre-eminence of Labour Market Flexibility	p. 11
Flexibility and Non-Standard Work in Labour Market Policy	p. 15
Labour Law and Flexibility in Contemporary UK Policy Discourse	p. 21
The Scope and Structure of the Book	p. 26
'The Employee' and 'the Worker': The Fragmented Expansion of UK Labour Law	p. 30
Introduction	p. 30
Employment Status and Non-Standard Work: The Narrow Gateway to Statutory Rights	p. 31
Disguised Employment	p. 32
Semi-Dependent Workers	p. 34
Casual Workers	p. 37
Workers in Multilateral Relationships	p. 38
Protecting 'the Worker': A Promise Yet to be Fulfilled	p. 41
Conclusions: A Retreat from the Protection of Non-Standard Workers	p. 48
Ensuring Equality and Availability: The Regulation of Part-Time Work	p. 55
Introduction	p. 55
Part-Time Work, Gender, and Disadvantage	p. 56
Exclusion, Discrimination, and Part-Time Work: Regulation Pre-New Labour	p. 58
Employment Protection and Discrimination: The Dualist Approach	p. 58
Part-Time Workers' Disadvantage as a Form of Sex Discrimination	p. 61
The Procedural Complexities of Part-Time Work as 'Women's Work'	p. 63
What is Part-Time Work Worth? The Justification Defence	p. 66
The Right to Work Part-Time?	p. 69
Part-Time Work, Flexibility, and Labour Law: The Statutory Regimes	p. 75
Part-Time Work in UK Employment Policy: Compatible Flexibilities?	p. 75
The Right to Equality in the Part-Time Workers Regulations	p. 78
The Scope of Comparison: A Procedural Retreat	p. 80
Justifying Discrimination: The Gateway to Flexibility?	p. 85
Temporal Flexibility and the Right to Work Part-Time	p. 87
Transfers to Part-Time Work in the Part-Time Workers Regulations	p. 89
The Right to 'Flexible Working'	p. 90
Conclusions: Substantive Protection, Procedural Constraints, and the Employer Prerogative	p. 93
Permanency and Protection: The Incomplete Integration of Temporary Work into United Kingdom Labour Law	p. 101
Introduction	p. 101
The Heterogeneity of Temporary Work	p. 102
The Extent and Disadvantage of Temporary Work	p. 104
The Traditional Regulatory Approaches	p. 107
Exclusion: Qualifying Periods, Continuity of Employment, and 'Contracting-Out'	p. 107
The Protective Dimension Pre-New Labour	p. 114
Temporary Contracts and Pregnant Workers	p. 115
Contemporary Approaches to Temporary Work	p. 119
Temporary Work in the Flexibility Agenda	p. 120
Extending Universal Legislation	p. 122
Qualifying Periods	p. 123
Waivers	p. 127
The Indefinite Contract and Equal Treatment: The Fixed-Term Employees Regulations	p. 128
An Overarching Limitation: Personal Scope	p. 130
Asserting the Standard Model? The Right to an Indefinite Contract	p. 131
Equality for Temporary Workers: Procedural Restrictions and the 'Overall Package' Approach	p. 135
Conclusions: Evolving Policy and Legal Discourses on Temporary Work	p. 138
Temporary Agency Work: Capturing the Tripartite Working Relationship	p. 143
Introduction	p. 143
The Growth and Conditions of Temporary Agency Work	p. 144
Employment Status, Allocation of Responsibilities, and Specific Rights: Traditional Regulatory Approaches to Temporary Agency Work	p. 146
Leaving Limbo? The Employment Status of Temporary Agency Workers	p. 147
Targeting the Client: Temporary Agency Workers and the Discrimination Regimes	p. 152
The Specific Rights Approach: A Limited Endeavour	p. 154
Temporary Agency Work under New Labour	p. 156
Labour Market Flexibility and the Regulation of Temporary Agency Work: The Policy Context	p. 156
'The Worker' Model and Temporary Agency Workers	p. 158
The Conduct of Employment Agencies and Employment Businesses Regulations 2003	p. 160
'Employment Agencies' and 'Employment Businesses'	p. 161
The Agency/Temporary Worker Agreement	p. 162
Wage Protections	p. 163
Fees	p. 164
Protection from Hazardous Work	p. 164
Freedom of Movement	p. 165
Conclusions: Regulating for Flexibility in Temporary Agency Work	p. 168
Conclusions: Non-Standard Work, Labour Market Flexibility, and Contemporary Labour Law--An Inchoate Reform	p. 173
Choice and Employability: Contemporary Flexibility Discourses and the Regulation of Non-Standard Work	p. 174
Interpretive and Procedural Retreats from the Protection of Non-Standard Workers	p. 178
A Cumulative Disadvantage: Fragmented Working Patterns and Labour Regulation	p. 179
Work/Family Reconciliation and Non-Standard Work	p. 180
Bibliography	p. 183
Index	p. 193
Table of Contents provided by Ingram. All Rights Reserved.

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Regulating Flexible Work

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