‘Criminality at Work’ book review – by Danielle Worden

1. Introduction    

The extent to which the criminal law should regulate labour rights and relations is a salient issue. This is due to the current Government’s increasing tendency to react to social and political phenomena with a criminal law response. For instance, the potential impact of public order offences contained in Police, Crime, Sentencing and Courts Bills on organised labour was recently examined by David Mead for this blog. In addition, the new offences and increased penalties proposed within the Nationality and Borders Bill are allegedly aimed (at least in part) at preventing labour exploitation. However, the proposed offence of arriving in the UK, would criminalise most asylum seekers. These themes, being the use of criminal law to restrain industrial action and regulate trafficking, are two of many themes examined in ‘Criminality at Work’.

Published in 2020 by Oxford University Press, ‘Criminality at Work’ is an edited book by Alan Bogg, Jennifer Collins, Mark Freedland, and Jonathan Herring. The volume explores the complex ways in which criminal law interacts with labour law to respond to violations of labour rights and “public wrongs.” It is the end-product of a three-year collaborative project between criminal lawyers and labour lawyers investigating these issues. It includes chapters from an impressive range of twenty-nine contributors.

The book takes a novel cross-discipline and cross-doctrinal approach. Many of the chapters adopt a distinctive socio-legal framework by focusing on how the law responds to political and social issues by regulating labour relations and rights. The book eschews the narrow focus on specific causes of action or legal categories prevalent in legal academia in this area. Rather, it focuses on social and political issues that affect the most precarious workers, such as modern slavery, domestic work, sex work, and wage theft. It also follows a unique cross-doctrinal framework by focusing on the specific intersection between criminal and labour law, with much of the prior literature focusing on the interaction of labour law with other areas such as contract law. Furthermore, it takes a comparative approach to the concept of ‘criminality at work’, considering legal approaches in Australia, Canada, and the United States. 

2. Key themes

The symposium book emphasises that criminal law has played a key role in the regulation of work since the 19^th century. It illustrates, however, that Governments have shown a renewed interest in regulating work through the criminal law in recent decades. In the UK, this is not only shown by laws responding to headline issues such as ‘modern slavery’, but also by use of criminal sanctions to regulate less-discussed dimensions of labour relations, such as care work and gangmaster licensing.

‘Criminality at Work’ thus has an impressive scope: it examines how criminal law interacts with the breadth of labour regulation, ranging from issues such as health and safety to the enforcement of the National Minimum Wage (“NMW”) to corporate criminal responsibility. The project behind the book was prompted by the passage of the Modern Slavery Act 2015 (“MSA”) and the Immigration Act 2016 (“IA 2016”), which created new modern slavery offences and criminalised working as, or employing, an irregular migrant. As part of the “progressive criminalization” of labour law, such offences might be seen as means of entrenching state power rather than securing justice for workers. This led the book’s editors and contributors to consider: how should contemporary criminal law in the UK regulate labour relations?

In their introductory chapter, Alan Bogg and Mark Freedland consider why there is a lack of engagement with the intersection between criminal and labour law. They trace this intersection from the repressive use of criminal law to enforce “Master and Servant” legislation against workers, to enforcement against employers as “worker-protective legislation” and “health and safety” laws throughout the late 20^th century. They argue that academics who have explored this intersection tend to focus on simply whether criminal law promotes compliance with labour standards and do not account for diverse use of criminal law in the labour context. This chapter also outlines the distinction between mala in se (“real crimes”) and mala prohibita (offences where the underlying act is morally wrong in itself). They explain that the justification for mala prohibita offences, which are often strict liability, is more contested, but suggest that such offences in the labour law context may contribute to achieving a “common good” or eliminating “public wrong”.

The editors began with a thesis consisting of six elements, which they concede was shaped by a “negative view of criminal’s law likely impact on labour market outcomes, especially for the most precarious workers”. The first element of the thesis, that the role of criminal law in regulating labour relations is in resurgence, is found to be true. The second element stipulated that this “over-criminalization” is due to the politicisation of criminal justice. The editors find that “over-criminalization” is an unhelpful metric, instead encouraging assessment of whether criminal law achieves “welfarist goals in the labour market” from the perspective of social democratic criminal law theory, under which the law’s effect should be to “regulate and equalize the inequality of power between the employer and an individual worker.” They conclude that some offences, both current and proposed, do seek to achieve this. However, moving on to element three, the editors also find that many offences criminalise certain statuses or seek to prevent alleged risks with little legitimacy, particularly in respect of migration. The fourth element of the thesis, being that illegitimate offences are based on moral judgements about character and ignore structural determinants of precariousness and vulnerably to exploitation, is upheld. This is shown, for instance, by the focus on attributing liability for “trafficking” solely to individuals, ignoring the responsibility of Governments, corporations, and socio-economic inequality. The editors also find that “worker protective criminalization” is a new feature of neoliberal labour markets and can sometimes disempower workers.

The sixth and final element of the thesis postulates: how should the criminal law respond to clear” public wrongs”, such as modern slavery? The editors conclude that the answer is complex and depends on the wrong in question, with labour lawyers’ being able to provide a vital socio-legal perspective. They find that mala prohibita offences may have more legitimacy by attaching to corporations rather than individuals, and therefore seeking to influence structural changes in the workplace and the labour market. An ancillary role for criminal sanctions relating to certain issues is ultimately envisioned, which should reflect a social democratic framework.

3. Overview

In ‘Criminality at Work: A Framework for Discussion’, Alan Bogg and Mark Freedland introduce the books key themes and structure. Part I ‘Mapping the Terrain’, the first three chapters outline consider the theory behind criminalization and how the law in the UK currently reflects this. Bob Sullivan begins with ‘Workplace Welfare and State Coercion’, in which he considers how regulatory offences can be used to achieve social democratic goals such as health and safety protection, diverging from dominant liberal theory. In Chapter 3, David Cabrelli presents an overview of how the criminal law currently reinforces labour rights and considers, focusing on the notion of ‘public wrongs’, where criminal enforcement mechanisms are justified. In the next chapter, Catherine Barnard and Sarah Fraser Butlin examine the effectiveness of using criminal sanctions to regulate working time, National Minimum Wage (“NMW”), employment agencies, and gangmaster licensing, concluding that criminal sanctions should play a subsidiary role to civil mechanisms.

In Part II, seven chapters are dedicated to examining ‘Labour Wrongs as Public Wrongs’. Adopting this premise, they consider when and how the criminal law should respond to labour rights violations. In ‘Exploitation at Work: Beyond a ‘Criminalization’ or ‘Regulatory Alternatives’ Dichotomy’, Jennifer Collins argues that “exploitation” within labour relations occurs on a spectrum and sets out a framework for criminal law responses, which should be aimed at eliminating precarity and insecure work, in response to “serious wrongful conduct”. Chapter 6 and 7 both discuss the use of criminal sanctions to enforce contractual obligations. In Chapter 6, Hugh Collins criticises specifically the use of the Fraud Act 2006 to enforce disclosure obligations in employment contracts.

Moving beyond the criminal law responses to labour rights derived from contract, in Chapter 8 Alan Bogg and Mark Freedland analyse the combined civil and criminal protection afforded from workplace harassment by the Protection from Harassment Act 1997, arguing that the existence of criminal penalties has weakened workplace protection by focusing on individual rather than organisational culpability. Instead, they advocate for an approach that centres “dignity” and focuses on corporate liability, with unions taking a central role in enforcement.

Chapter 9 and Chapter 10 then set out two different perspectives on how the criminal law should respond to sex work. In Chapter 9, Michelle Madden Dempsey adopts an approach grounded in liberal criminal theory which endorses criminalising the purchase of sex if necessary to avoid the “indirect harm” of increasing the demand for sexual services and, in turn, sexual exploitation. In contrast, Katie Cruz takes a Marxist feminist approach to sex work by stipulating that sex work is work, that exploitation and “unfreedom” occurs within all labour relations under capitalism, and that criminal law should take a cautious role that is limited to work-protective goals and informed by the lived experience of sex workers.

In the final chapter in Part II, Virginia Mantouvalou considers in ‘Human Rights, Labour Rights and Criminal Wrongs’ the extent to which criminal law assists in protecting the human rights of workers. As human rights are moral entitlements, she argues that certain wrongs by private actors, such as trafficking and union-backlisting, should attract civil responses that are supported by criminal responses from the state.

Part III of the book then explores ‘The Contemporary Shape of Criminalization Practices: Risk, Status, and Character in Neoliberal Criminal Law.’ It is informed by Nicola Lacey’s research on criminalization in labour law, which sought to theorise the link between increased criminalization in seemingly disconnected areas, ranging from care work to immigration. Nicola Lacey argues that contemporary criminalization of labour relations can be mapped across a “hybrid character/risk” model, focused on criminalising certain statuses and/or pre-empting alleged risks. It begins with Chapter 12, in which Andrew Ashworth and Jennifer Collins consider certain preventive criminal law responses to labour wrongs, such as the offence of employing an illegal worker, and argue for a greater emphasis on worker-protective labour laws and civil remedies. This is followed by ACL Davies’ analysis of the role of criminal law in licensing regimes focusing specifically on gangmasters. Whilst highlighting that the current usage of criminal sanctions in that context can lack principle and be disproportionate, she argues that criminal enforcement of licensing may be a useful tool to promote worker-protection, especially in sectors where precarity and abuse are rife.

Chapter 14 and Chapter 15 enable comparison of how the criminal law responds to alleged wrongs committed by health professionals. In ‘Care Workers: A Critique of Prosecution for Ill-treatment or Wilful Neglect’ LJB Hayes critiques section 20 of the Criminal Justice and Courts Act 2015, which criminalises the acts or commissions of individual care workers without challenging the structures and managerial choices that make care work highly precarious and difficult. In the next chapter, Suzanne Ost highlights the comparatively stronger position of doctors, to whom unique defences are available to certain work-related conduct, However, she illustrates that, although not a precarious group of workers, doctors risk serious criminal sanctions in certain situations which do not account for the pressures created by austerity on the ability of doctors to work safely.

Migration and modern slavery are the focus of the three following chapters. In Chapter 16, Cathryn Costello applies liberal contract theory and argues that neither direct or indirect harm is caused by “irregular migration”, and that there is no justification for malum prohibitum or malum in se offences. To the contrary, she argues that criminalization of irregular migration, such as through the offence of illegal working under the IA 2016, only causes harm. Ana Aliverti in Chapter 17 then refers to the work of Lindsay Farmer to provide a historical and sociological analysis of who is included within a state’s “civil order”, explaining how criminal law increasingly operates to exclude migrants from the “civil order” and that “political’ and “collective” resistance is key to changing who is included. In ‘Modern Slavery, Domestic Work, and the Criminal Law’, Jonathan Herring draws upon the work of Judge Fudge and Kendra Strauss by criticising the criminalization of individual actors for absolving the “patriarchal” state of responsibility for issues such as modern slavery and exploitation of domestic workers.

Concluding Part III, Alan Bogg, KD Ewing, and Andrew Moretta challenge the view that the presence of the criminal law and the police in regulating union action has declined. Rather, they illustrate that this presence remains prominent, particularly in situations of alleged “emergencies.”

In Part IV titled ‘Criminalization and Enforcement’, the effectiveness of criminal sanctions to deter breaches of labour rights and rules in protection (i) health and safety and (ii) NMW rights is considered. In Chapter 20, Paul Almond critiques health and safety offences for focusing unduly on individuals rather than corporations and therefore having a limited influence over structural change, a similar finding to that reached by Alan Bogg and Mark Freeland relating to workplace harassment in Chapter 8. Michael Ford then provides a historical analysis of health and safety offences in Chapter 21, arguing that they weaken rather than strengthen enforcement by replacing civil remedies that entitled workers to compensation. Moving on to NMW rights, in the next chapter Alan Bogg and Paul S Davies explore the liability gap in supply chains and “fissured workplaces”, whereby where “X” subcontracts a particular economic activity to the direct employer “Y” and Y then fails to pay NMW to the workers it engages to discharge the contract. Accounting for the Australian approach, the contributors argue that X, along with Y, should be held criminally liable under “accessory liability” rather than through artificial attempts to label the lead company as the employer.

Part V, the final part of the book, examines the regulation of “Criminality at Work” in the United States, Canada, and Australia. Reflecting the wider structure of the book, the contributors take a cross-doctrinal and multi-discipline approach by concentrating on socio-political issues. In Chapter 23, Eric Tucker and Judy Fudge compare the evolution of criminal law in Canada and the UK from being aimed at repressing workers via “Master and Slavery Law” to having a worker-protective function, although identifying weaker enforcement of criminalised worker-protective laws in Canada. Marilyn J Pittard then critiques how criminal sanctions impact access to employment and undermine rehabilitation efforts in Australia, the United States, and the UK, especially regarding individuals who have been incarcerated. This analysis is extended by Noah D Zatz in Chapter 25, who argues that custodial punishment in the United States has created a “carceral state” and transformed labour relations as incarcerated people are simultaneously excluded from decent work whilst being coerced into poor quality via, for instance, labour relations. In the book’s final chapter, Bruce P Archibald explores the scope for restorative justice through Canadian laws that impose corporate criminal liability, amounting to “responsive workplace law”.

4. Chapters in focus

Each of the book’s chapters and contributors make a unique contribution to this project deserving of further review. For instance, in Chapter 5 Jennifer Collins’s theoretical analysis of “exploitation” should shape the reader’s understanding of later chapters. Collins presents no “single neat definition” of “exploitation”, but emphasise that it involves the “abuse of vulnerability and control” and explains that vulnerability in the context of labour relations can be “inherent in the work relation, created/exacerbated by law, compounded by real or perceived restrictions on workers’ ability to challenge or report their treatment.” Exploitation is said to occur on a “continuum” and that conduct amounting to “serious wrongful conduct” in labour relations can justifiably be criminalized.

Collins thus argues that a polarised approach to criminalization, where it is considered either entirely helpful or unhelpful, is too limiting. She acknowledges general issues with criminalising labour wrongs through a “regulation plus crime” model, including how criminalization does not address structural determinants of vulnerability and how modern slavery offences are currently used to enforce border control. Instead, Collins proposes a “multi-dimensional regulatory model” where legal interventions are aimed at eliminating precarity and insecure work. This entails that conduct is criminalised only if amounts to “serious public wrongdoing” requiring fault and harm, and accounting for factors such as the range of possible sanctions and how they are likely to be enforced in practice, alongside other regulatory alternatives. Requiring “principled decision-making between regulatory channels”, this will often involve “criminal law and other forms of law operating in tandem” and can legitimately involve both mala in se and regulatory criminal law offences.

This proposed framework can be seen as aligning with how Katie Cruz envisions the regulation of sex work in Chapter 10. Her Marxist feminist approach emphasises that sex work, like all work, is exploited, alienated and “unfree” under capitalism, with “unfreedom” occurring on a “continuum” that ranges in “severity according to the balance of class forces”. There is thus no basis for the unique condemnation of sex work and the goal of regulation should be ensuring decent work for all engaged in paid labour, with no exceptions. Cruz recognises that sex workers are a “gendered” and “racialised” group, and that the “unfreedom” in sex work varies. Nonetheless, she argues that criminalising sex work only heightens this “unfreedom”, by barring sex workers from accessing labour rights, reinforcing stigma, and undermining safety. In contrast to Dempsey, she claims that criminalising the purchase of sex creates further harm by, for instance, forcing sex workers to meet clients in riskier settings. Cruz argues that criminal law interventions should be limited and aimed at ensuring greater “freedom”, with existing offences being potentially suitable for addressing workplace violence or health and safety issues. However, Cruz also cautions that the decriminalization of sex work alone will not ensure the protection of the labour rights of sex workers, as criminal offences regarding trafficking and illegal working will continue to undermine this.

A key theme of the book is how criminal law purports to address modern slavery. One chapter dedicated to this is Chapter 16, in which Cathryn Costello uses standard liberal criminal theory to powerfully argue against the criminalization of “irregular migration” due to the lack of direct or indirect harm caused. She highlights that irregular migration channels exist not only due to laws restricting the ability to seek asylum, but are also fuelled by other rules designed to exclude migration from poor countries, such as those imposing visa fees and complex application requirements, granting temporary residency, and limiting the ability to work. Like Katie Cruz regarding sex work, Costello finds that criminalization, both through mala in se and mala prohibita crimes only perpetuates harm by “targeting irregular migrants to undermine labour rights and contribute to unlawful discrimination on grounds of race and ethnicity”, with no justification, wrongfulness, or blameworthiness. Costello finds this true of newer offences under the IA 2016, which criminalises illegally working and employers who employ someone with “reasonable cause to believe” they lack the right to work. Her analysis is applied to well-established criminal law interventions into the labour relation such as the “illegality” doctrine which sometimes prevents migrants from enforcing labour rights.

Other chapters, however, envision a more distinct and positive role for criminal sanctions in relation to certain issues. A key example is the proposed usage of accessory liability in the context of supply chains and “fissured workplaces”, as discussed by Alan Bogg and Paul S Davies in Chapter 22. Accessory liability is a well-established principle within criminal and private law, but to-date has been relatively overlooked in the labour law setting. The contributors argue that, when Y commits “wage theft” by failing to pay its workers NMW, then X (who sub-contracted the economic activity to Y), could also be liable through intentionally assisting or encouraging the commission of the principal offence. This would achieve the goals of criminal sanctions of “fair labelling” and reflecting culpability, without relying on the fiction that X is an employer. They explain that the ability to sanction X is important as such companies are often “powerful economic actors whose commercial practices can affect the working conditions of the many thousands of workers”. This is as they often exercise significant bargaining power over Y, and seek to extract maximum profit from the sub-contract by paying the lowest possible price to Y. In turn, the “resulting squeeze puts those firms in a position where it is impossible to operate profitably while meeting basic employment standards”, with Y keeping wages as low as possible. Sanctioning X could thus prompt structural change in certain industries, providing an economic incentive to encourage Y to pay NMW. The authors propose a statutory form of accessory liability modelled on that found in the Australian Fair Work Act 2009. Although accessory liability is a common law concept, this would increase awareness of the potential sanctions for X and offer clarity regarding, for example, that the mens rea would include “wilful blindness”. However, the authors caveat that accessory liability should form part of a broad range of civil and criminal sanctions aimed at changing the behaviour of X.

5. Conclusion

In their opening chapter, Alan Bogg and Mark Freedland state that:

 “…the need for reasoned and evidence-based reflection on the criminal law as a regulatory technique in work relations could not be more acute… given the troubling overlaps between criminalization and populism at the current time. Still, the intellectual richness and humanity on display in this volume makes us think that its worth the struggle.”

Such observations have become only more acute given the current emphasis on policing and criminal sanction by the current Government, and the potential impacts on labour law. The book is thus a vital source of research and analysis for not only criminal and labour lawyers, but also those concerned in general with the future of labour relations and the limits of state power.

About the author of this review

Suggested citation: Danielle Worden ‘Criminality at Work – book review’, UK Labour Law Blog, 1 February 2022, available at https://uklabourlawblog.com)