It%20ain%27t%20necessarily%20so%20-%20Legal%20Realism%20and%20Agency%20Work%20MLR%20style.pdf (857.31 kB)
It ain’t necessarily so: a legal realist perspective on the law of agency work
Analysis of UK employment and labour law is often characterised by a curious dissonance. The overarching narrative mandates that labour law is a countervailing force to the inequality of bargaining power, embedded with values and assumptions concerning the nature of employment relations and the role of labour law. And yet, labour law jurisprudence tends to treat with respect, and seeks to decipher, abstract statutory concepts and tests derived from judicial pronouncements as if they were, indeed, a ‘brooding omnipresence in the sky’. This paper seeks to bridge that gap, by offering a legal realist account of the legal doctrine that governs the employment of agency workers, focusing on the ‘necessity’ and ‘sham’ tests. It assesses the legitimacy of importing legal tests from one (commercial) context to another (employment) context; questions the courts’ protestations that their use is mandated by precedent; and outlines the real implications for the status and rights of agency workers in the UK.
History
Publication status
- Published
File Version
- Accepted version
Journal
Modern Law ReviewISSN
0026-7961Publisher
WileyExternal DOI
Issue
3Volume
83Page range
558-582Department affiliated with
- Law Publications
Full text available
- Yes
Peer reviewed?
- Yes
Legacy Posted Date
2019-11-15First Open Access (FOA) Date
2021-01-19First Compliant Deposit (FCD) Date
2021-01-19Usage metrics
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