Labour law and epistemic injustice – by Dr Lisa Rodgers

Image by Rahul Bhattacharya from Pixabay

I would like to thank Professor Valerio de Stefano, Professor Douglas Brodie, Dr Zoe Adams and Dr Steve Riley for all their help and support in developing these ideas.

1. Introduction

In this blog, I wish to set out the importance of considerations of epistemic (in)justice to labour law: the capacity of workers and employers as knowing subjects. This continues the tradition in labour law theory of thinking about the relevance of the unequal social positions of workers and their employers, but it does so in (I believe) novel ways. At the same time, thinking about epistemic justice and labour law allows us to challenge some of our most foundational assumptions about how we conceive justice in employment relationships: the autonomy of labour law as opposed to contract (law), the nature of employment injustice, the quality of workers and employers as persons, and ultimately how justice is meted out through the courts.

2. The autonomy of labour law

My starting point is that labour law is at base, contractarian. This is not just because labour law is connected to contract law through the contract of employment, although this is of course the case. The charge is deeper than that. Labour law adopts certain assumptions about the relationship between employers and workers which reflect contractarian positions.

To understand this contractarian position, it is necessary to go back to the idea of the social contract. Social contract theory starts from the idea of a ‘state of nature’ or an ‘original position’. In the original position, all persons are equal. They all share the same quality of rationality and the same rights. Individuals exist with no natural connections to each other, or must proceed as if those connections do not exist (Rawls, A Theory of Justice: Revised Edition). Broadly speaking, the essential feature of persons in the original position is moral agency: the ability to decide on how to act in their own interests. As Mills argues, this idea of moral agency in the original position is essential to the social contract narrative because it ensures that (legal) principles are created in just ways and the ensuing transactions are just.

Labour law adopts this idea of the equality of moral agency between employers and workers (in entering into employment contracts). This is the baseline upon which the adjudication of the law of the contract of employment works. The ‘inequalities’ that are recognised as a function of employment relationships – bargaining power, subordination or dependency, democratic deficits or even the problem of questionable consent  – do not touch these foundational assumptions of moral agency. To do so would be to undermine the whole morality of liberal law in the Fullerian sense:

I have repeatedly observed that legal morality can be said to be neutral over a wide range of ethical issues. It cannot be neutral in its view of man himself. To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults (162).

The problem then is that labour law is never able to escape the clutches of contract law: cases show that employment law proceeds on the basis of balancing the rights of employees and employers even in the interpretation of statutory rights. As a result, whilst labour law recognises various kinds of inequalities between employers and employees and purports to equalise them, it does not do so on a systematic basis. There is no systematic uplift given to employees in the adjudication of employment rights. There are certainly individual ‘wins’ for employees claiming access to justice or breach of employment rights. Occasionally, there is judicial reference to the inequality of bargaining power between employees and employers and the vulnerability of workers. But overall, employment law acts to balance the interests of employers and workers. In the context of social inequalities, this can lead to a legal framework which is ineffective for workers and actually favours the interests of the stronger party: the employer.

Whilst many labour lawyers have challenged the effectiveness of labour law in supporting workers, and the limits of contract law principles in the adjudication of employment rights has been recognised, the connection has not so far been made between these failures and the contractualist foundations of labour law. Employment and contract remain inextricably linked (Davidov, Theory of the Contract of Employment) and so too, the assumptions around workers and employers as equal moral agents and equal juridical knowing subjects. My argument is that if labour lawyers really want to challenge the way in which labour law fails to achieve social justice for workers, it is essential to challenge this (contractualist) assumption of epistemic equality. Moral agency must be seen as unequally distributed and fundamentally affected by political and social position. Workers must be viewed as suffering (from the very instigation of contractual relations) from epistemic injustices which affect both their ability to recognise the conditions of their own exploitation (hermeneutic injustice) and their capacity to represent their experience as injustice (testimonial injustice).

3. Hermeneutic injustice

Historically, the focus of the literature on epistemic injustice has been on the qualities and content of moral agency, and the rightness and wrongness of denying certain persons or groups moral agency. According to Fricker, this is the point at which political engagement with epistemology traditionally begins and ends; if individuals or groups achieve the status of moral agency then they have access to the full suite of rights and obligations that moral responsibility demands. However, more recently, critical theorists have recognised the importance of power in determining epistemic advantage and disadvantage even where moral agency is present. Hermeneutical injustice is one such kind of epistemic justice which suggests that the powerful have an unfair advantage in structuring social understandings. As a result, a subject who belongs to a group which does not have access to equal participation in the generation of social meanings (for example a worker) is put at an unfair disadvantage when it comes to making sense of their social experience.

I wish to pursue the argument that the institution of employment is a site of hermeneutic injustice. The argument proceeds from the work of Pateman that in order to function, the institution of employment has to rest on a fiction according to which workers can separate their (mental) ability or capacity to contract from the contract’s corporeal operation. This Cartesian separation is a critical theoretical step in order to ensure that the morality of liberal law and the moral agency of ‘persons’ is upheld through this institution. According to liberal doctrine, entering into contracts requires freedom in the sense of free will or autonomous moral agency. It is not possible to sell or contract out of moral agency because that would not only undermine the validity of the contract but also undermine the whole system of morality upon which (contract) law is based. Hence, moral agency (or mental capacity) is necessarily retained when the labourer chooses to contract with another for their bodily labour power. This labour power is the property of the labourer and is available to be contracted out. Of course, this separation is entirely fictional. What the employer ‘buys’ in the employment contract is not just (bodily) labour power on its own. The employer buys the power of direction over the whole person; the subordination of that person to the employer’s terms.

According to this narrative, subordination is a technical access condition, which once fulfilled, allows workers (or employees at least) access to equal status with employers in the field of employment rights. Workers have moral agency or status-dignity which stays with them throughout the employment relationship. On the other hand, the ‘conditions’ of subordination which are part of the experience of employment are not relevant to this status condition. Issues of ‘control’ of labour, in the sense of labour power, are issues of coordination and are not issues of status or morality. In any event, workers or employees consent to this ‘control’ or subordination when they enter into the employment relationship. They assent to the employer’s superior power in the sense of knowing when directions are needed, when market conditions change and how far control is needed. Furthermore, they consent to the use of any part of the ‘person’ during the conduct of the employment relationship. This is what is bought and sold through the institution of employment.

So the ‘subordination’ that workers suffer when they enter into employment relationships is far greater and much deeper than the law would have us believe: it does undermine moral autonomy and agency. It is also systemic to a much greater extent than is admitted through liberal doctrine. Workers are asked to accept the superior power of employers in the direction of any or all part of themselves through the institution of the contract of employment. What is at stake is not just moral autonomy but Ingram’s idea of ‘political autonomy’: the ability of workers to recognise the conditions of their own subordination and act, if they choose, to change that subordination and the structures that create it.

It turns out then, that workers have difficulty in raising subordination or the operation of power in employment relationships as an issue of legal or political concern. For example, Salvi et al suggest that the way in which power is exercised in employment relationships through algorithmic management and technological surveillance violates principles of morality and justice. However, outside of human rights to privacy, this kind of surveillance is not inherently wrong from the point of view of labour law. The problem is that the fiction of property in the person upholds the legitimacy of employer action of this type, whilst also denying its relevance to rights. Furthermore, the problems of subordination are not presented in political terms (see also De Stefano and Countouris Lifting the Private-Law Veil: Employer Authority and the “Contractual-Coating” of Worker Subordination. There is no systemic democratic failure in operation in the institution of employment. Indeed, even where democratic deficits in employment relationships are recognised, these are viewed as akin to (individual) subordination which can be explained away and sanitised.

The upshot is that the legal system is extremely conservative and does not systematically ‘equalise’ the bargaining power between employers and employees. In fact, the legal system maintains the power relations between employers and employees by reducing the ability of workers to recognise themselves as political (rather than subordinate) subjects. It is for this reason that some of our most influential labour law theorists have suggested that the inequalities faced by labour can only be resolved through social means – outside of the law. For Kahn Freund, it was trade unions, not the law, which could act as a countervailing force to resolve the problems of inequality of bargaining power between workers and employers.

4. Testimonial injustice

The previous section was concerned with developing the argument that the fiction of property in the person sets up the institution of employment as a site of hermeneutical injustice: employees and workers cannot recognise the injustices that they face as injustice. In this section, the focus shifts slightly. I want to investigate what happens when our assumptions about the equality of moral agency between employers and employees (which is central to contractarianism and the institution of employment) are completely blown apart. What happens when we suggest that social inequalities between employees and employers are not just a feature of individual contractual arrangements, but part of the original contract of liberal justice?

Charles Mills takes issue with the key insight of social contract theory that human beings are naturally equal in the original position and that this equality translates into egalitarian socio-political institutions. He follows Rousseau in suggesting that first of all, inequalities between human beings are integral to and integrated into the design and working of the social contract. For Rousseau, the important social inequalities were around class; the social contract emerges against a background of unequal relationships between rich and poor, in which the rich have the upper hand. For Mills, the important social inequalities are around race. The story of the social contract is one of exclusion of non-whites from both its terms of agreement (because they were not considered ‘persons’ and so not able to enter into contractual relationships) and the operation of its terms. This locks in a certain set of privileges for this group:

Whites ‘contract’ to regard one another as moral equals who are superior to non-whites and who create, accordingly governments, legal systems and economic structures that privilege them at the expense of people of colour (Mills, 36).

The whole social contract order is maintained by reference to a set of abstractions (such as ‘equality’ and ‘freedom’) and other norms which seek to ensure nominal equality whilst obscuring substantive inequality in practice. Under cover of egalitarianism, the ‘domination contract’ generates norms and stipulations about how to apply these norms that will themselves enforce and reinforce domination. In the context of the law of the contract of employment this proposition is not particularly novel. It is accepted that contract law operates on the basis of false assumptions of equality whilst allowing inequalities to proceed unchecked. Indeed, labour law specifically responds to the inequality of bargaining power between contracting parties in employment relationships and seeks to correct it through specific and directed law or modification of contractual terms.

What is more novel, and is only just being recognised, is the suggestion that the norms of the domination contract are felt even within those areas of law, like labour law, which purportedly seek to ensure that responsibility practices specifically recognise inequalities. In labour law, it is assumed that abstract norms are ‘filtered’ in a way that  specifically recognises the relational nature of the subject, and responsibility practices follow those assumptions. The power asymmetry between employers and employees is legitimate, so the practices that constitute moral responsibility are legitimate as well (Oshana, Ascriptions of Responsibility Given Commonplace Relations of Power).

However, it is now being recognised that ascriptions of responsibilities and responsibility practices are not immune to power dynamics. The social, economic and political power dynamics that structure the context within which evaluations of responsibility occur are important. In the context of the domination contract, Mills shows how some parties are more accountable than others, are more ‘responsible’ than others. This is partly because responsibility, reasonableness and so on are systematically ascribed to certain individuals and certain parties because of the operation of history and power. In the context of employment for example, employers as a group are systematically assumed to be ‘reasonable’ to a greater extent than workers (Rodgers, Reframing Employer Personality and Responsibility in the Age of AI ). This is also partly because some parties set the rules of the game whilst other parties are merely forced to accept or acquiesce to them. As Fricker demonstrates, evaluating reasons and assessing whether reasons given reach a particular standard are easier for those who set the standards and know how to communicate those reasons in a way that others would accept.

The system is self-perpetuating. The structures of the domination contract are maintained by the actions and inactions of those privileged by them. On the other hand, powerlessness diminishes the ability to protest rational authority, particularly if this is at the expense of someone more powerful. The result is profound: practices of responsibility track social power, and in that way tend to be asymmetrical rather than reciprocal (Hutchinson, Mackenzie and Oshana Social Dimensions of Moral Responsibility).

This is clearly seen in the operation of ‘reasonableness’ in the context of UK unfair dismissal law. At base, the test of ‘reasonableness’ in section 98(4)(a) Employment Rights Act 1996 is both neutral and egalitarian. Reasonableness is expected from both parties to an employment relationship and so the law is just codifying this principle and ensuring that it is maintained in practice. Indeed, the legislation frames the reasonableness test in neutral terms; essentially that the question of whether a dismissal is fair or unfair depends on whether the employer acted reasonably or unreasonably in treating the reason for dismissal as sufficient (section 98(4)(a) Employment Rights Act 1996).

However,  there are certain factors which determine that the adjudication of the reasonableness test is not, strictly speaking, neutral. The first is that employers as a class are assumed to act reasonably (in a way that workers as a class are not). The reasons for action of employers as a class are more accessible than those of workers. As French argues, corporations tend to have a set of designated rules that would tend to reveal how to recognise a decision as institutional. Moreover, the line between corporate rules and corporate decision-making can be easier to make explicit and transparent than the actions of individual workers. This is because of the simplicity of corporate aims, broadly speaking, and the fact that corporate decision-making is unencumbered by the messiness of bodily existence and ‘external’ factors of need and dependency and so on. The second is a question of knowledge. It is understood by the courts that employers have access to all the industry-specific information to allow them to make a balanced or reasonable decision in relation to dismissal (Cabrelli, Hierarchy of Differing Behavioural Standards of Review in Labour Law). Thirdly, they are able to express their reasonableness in terms which make institutional sense. They know (perhaps through their lawyers) how to use the language of reasonableness in the execution of decisions and also to show evidence of ‘reasonableness’ in their actions. In the words of Fricker, they are ‘good’ informants or superior moral agents.

This epistemic advantage plays out in various ways in the adjudication of unfair dismissal disputes. It plays out in judicial deference to employers on the reason for dismissal and the low standard of scrutiny of employer actions through the ‘band of reasonable responses test’ (Baker, ‘Range of Reasonable Responses’ Test: A Poor Substitution for the Statutory Language). It can be seen in the permissive approach to employer investigations following BHS v Burchell, according to which a reasonable investigation need not discover the fact of misconduct (leading to dismissal) at all. Employers are merely required to show that they have carried out as much investigation into the matter as reasonable ‘in the circumstances’. In misconduct cases, the band of reasonable responses is applied twice, both at the level of investigation and the decision to dismiss. At both of these points it is clear that employers have an epistemic advantage. They have superior knowledge of the ‘circumstances’ of the investigation and the investigation itself. They have control of the evidence and the evidence gathering process. This makes the ‘reasonableness’ of the investigation relatively easy to demonstrate, especially in the context of low judicial scrutiny (in the Burchell case, it was deemed ‘not relevant for the Tribunal to examine the quality of the material which the employer had before him’). At the same time, the fact that some evidence has been gathered means that it is easier to show that the decision to dismiss was fair and reasonable under section 98. By contrast, employees have little opportunity to dispute the quality of the evidence, the decision-making mechanisms or the reason chosen for the decision to dismiss by the employer in unfair dismissal disputes. There is little correction for epistemic disadvantage, despite the employee protective aims which surround this statute. Hence, unfair dismissal law is a potential and actual site of testimonial injustice for employees.

Although unfair dismissal law is a seminal example of testimonial injustice in operation, this kind of epistemic injustice is pervasive in the design and adjudication of many other (more progressive) labour laws. For example, the prohibition of indirect discrimination under section 19 Equality Act 2010 and Article 14 European Convention of Human Rights. As Fredman argues, indirect discrimination law is forward-looking and progressive in the context of equality law more generally, as it transcends equal treatment and aims for different kinds of more substantive outcomes for workers. However, it is my argument that its provisions rely on evidential requirements that are easier for employers (as ‘good informants’ or ‘superior moral agents’) to meet than workers, and this undermines its effectiveness. For example, there is intense scrutiny over the link between individual and group impact; whether the provision, criteria or practice in question disadvantaged not just one member of a group but the relevant group as a whole. In the field of religious discrimination, individuals are asked to justify their religious beliefs by reference to ‘evidence’ that their own beliefs represent those of their religious group, and this has proven a major obstacle (see Eweida). By contrast, considerable latitude is given to employers by the courts in deciding whether their discriminatory actions are justified. The evidence-based nature of the assessment and the recognition of the ‘objectivity’ of employers (as a group) in pursuing their business aims all work in favour of employers in this assessment (AG Sharpston’s analysis of Bougnaoui v Micropole SA).

5. Conclusion

Labour law proceeds on the basis of the equality of moral agency; it is a contractarian in that sense. I want to take seriously the argument that this assumption of equality of moral agency is a myth – that social power infiltrates moral agency and moral responsibility. Moral agency is fundamentally unequal.

I argue that this disrupts the labour law narrative and brings new forms of (epistemic) injustice within its orbit. First, it allows us to see the institution of the contract of employment as a site of hermeneutic injustice; employees and workers cannot recognise the injustices that they face as injustice. It also exposes employment law as a site of testimonial injustice: the law affords more credibility (or more moral agency) to employers rather than workers. My argument is that these kinds of epistemic injustice are essential to understanding the outcomes and experiences of workers engaging with the law. If labour law is really about social justice, then it must engage with the fundamental question of epistemic injustice between workers and their employers.

(Suggested citation: L Rodgers, Labour law and epistemic injustice, UK Labour Law Blog, 18 March 2026 available at https://uklabourlawblog.com/)