On Wednesday the 20th of February we launched the book Philosophical Foundations of Labour Law (Hugh Collins, Gillian Lester and Virginia Mantouvalou eds, OUP, 2018) at the Faculty of Laws, UCL. The event was introduced by Professor Dame Hazel Genn (former Dean, UCL Laws). The introductory remarks were followed by speeches by Professor Keith Ewing (KCL), Professor Guy Mundlak (Tel Aviv University/UCL) and Karon Monaghan QC (Matrix/UCL).
This blog post is the speech of Karon Monaghan QC.
I shall say a few things about the book, in particular from a practitioner’s perspective. I would like to pick up on a couple of topics addressed in the book that were of special interest to me in view of my practice areas. But first, I would like too to welcome this book and congratulate its authors.
The book is not one that would immediately seem attractive to a practitioner. A glance at its cover could give the impression to someone like me that it’s going to be a bit too esoteric to be of any real use; no doubt interesting to dip into if time allows, but otherwise to put on the shelf invisibly marked ‘to read in the event that you run out of other things to do’.
However, I was forced to read it having been asked by the authors to say a few words about it. I am very pleased that I did so. It reminds me as a practitioner, and we need reminding from time to time, of the value of academic work to practice. This book challenges many of the assumptions made by practitioners like me about what the world of work is, and the perceived inevitability of some aspects of labour law. So much employment related litigation is just predicated on the assumption that we are where we are for some sound, rational and logical reasons – the necessity of the contract of employment being the paradigm example and one which is now being routinely challenged. This book will help, I hope, in unpicking some of the assumptions that underlie its perceived value as a labour law device.
Just touching upon a couple of particular issues that are of special interest to me then. The whole book of course is interesting, but as an equality lawyer my eyes were drawn to those chapters in which the subject of equality leapt out. It is right to say that unsurprisingly in a book like this, equality is a theme that runs through the book in one way or another: Pablo Gilabert’s chapter is an example with his discussion on the idea of human dignity as informing labour rights (Dignity at Work).
But I started near the end of the book with Joanne Conaghan’s chapter. Firstly, because I’m a fan of her work but also because it’s got gender in its title – Gender and the Labour of Law. It contains a fascinating critique of the assumption underpinning labour law that labour is and will be remunerated. The impact on women of that assumption is obvious. Some of the things Joanne talks about, even as a mere practitioner, I know about, but it’s the grounding of that assumption, and its origins, in an historical analysis that is so illuminating to me. Joanne describes the way in which the work binary, I suppose it could be put – paid and unpaid (home) work and the corresponding split between home and work spaces – was driven by the needs of industrial capitalism. She points out that that norm is being disrupted because of the need to recognise what happens in the home as women have entered the workplace in large numbers, so ‘blurring,’ as Joanne puts it, the divide that has been hitherto crucial to meeting the reproductive needs and productive needs of capitalism.
I might add that some scholars will convincingly say that that’s the reason why feminism has become so popular among the powerful (Theresa May proclaims herself a feminist!), businesses and otherwise: neoliberal feminism as its been referred to (see, Catherine Rottenberg: The Rise of Neoliberal Feminism). Capitalism, neoliberalism, still need women for reproductive purposes, that’s got to be accommodated – business knows it, conservative politicians know it and feminism is as a good a word as any to attach to that imperative. It’s not a progressive form of feminism, of course. It’s rather more liberalism than liberation.
As to resolving the tension between productive and reproductive needs and ensuring gender equality, Joanne cites Nancy Fraser, suggesting that a universal caregiver model must be adopted so women’s patterns of life and work become normal for all. Absolutely just what we are all litigating about: Men’s rights to time off – challenging the stereotypes around care. (A manifestation of feminism I think I’m unlikely to see in my lifetime).
But for Joanne too, the question has to be asked whether our continued allegiance to a paid work paradigm is necessary or inevitable. At the very least, for Joanne, it needs to be revisited perhaps with a vision for labour law that fits with a capabilities model, or a human freedom model, advocated by Amartya Sen.
In short, it is brilliant, inspiring, a good read and also relevant to what is actually happening on the (labour law) ground.
How we value (or not) home work and how we accommodate the need for care and for women and men in the workplace, are all key areas for litigation at the moment.
Interestingly, Sabine Tsuruda writes about volunteer work, that is unpaid work, but from a very different place (Volunteer Work, Inclusivity, and Social Equality). Voluntary work for Sabine brings benefits beyond labour’s instrumental qualities – to my mind challenging the concept of productive labour as we perceive it. She advocates critically scrutinising whether, even if there are some justifications for excluding volunteers from labour law (and she suggests that there may be positive reasons to do so), true inclusivity and the fostering of good social relations that volunteering brings, can only be properly secured if there are some protections in place, such as those provided by anti-discrimination law. Again, the status of volunteers in the workplace and the labour rights they enjoy is an area of great controversy in practice.
Finally, I want to say something about Virginia Mantouvalou’s chapter (Legal Construction of Structures of Exploitation). It links to Joanne’s. Joanne refers to how in practice the paid work paradigm of labour law – ignoring unpaid work – affects work or labour and the value placed upon it more widely. It affects the way we view domestic work and how we value it generally, so we have exemptions for live-in domestic workers under the National Minimum Wage Regulations, for example. There is again litigation on this issue and many are confident that the exemption will fall or be set aside in the not too distant future, but it is illustrative of the disrespect with which we view home work.
Virginia addresses a related and, in my experience, overlapping area: exploitation including slavery and forced labour, domestic workers commonly falling into those categories of worker.
The book doesn’t speak to the slavery that funded industrialisation that led to the new form of work and labour relations that are explored in the book. Virginia’s brilliant chapter looks at it through a different lens – she talks about the protections afforded in human rights law now (again highly topical with cases going through the courts on the scope of Article 4 to which she refers). However, importantly Virginia warns against a focus on the extremes, as she puts it. Seeing exploitation as only present in slavery and forced labour risks ignoring less extreme forms of exploitation – the mundane incidents of exploitation, like that experienced by care workers, whose work is undervalued and underpaid, who aren’t compensated for all the hours of work travelling from home to home, who undertake heavy lifting and hard graft. We need to be sure to keep those forms of exploitation at the forefront of our minds.
So for me it is an incredibly useful book and I will be using it as a resource in real life.
About the author: Karon Monaghan QC practises principally in the fields of equality and discrimination law, human rights and EU law. Her work spans the fields of employment law, civil actions and judicial review. She is also the author of ‘Equality Law’ (2013, OUP).
Suggested citation: K Monaghan, ‘Speech at Philosophical Foundations of Labour Law Book Launch’, UK Labour Law Blog, 25th February 2019, available at https://wordpress.com/view/uklabourlawblog.com).