It ain’t necessarily so: a legal realist perspective on the law of agency work

Paz-Fuchs, Amir (2020) It ain’t necessarily so: a legal realist perspective on the law of agency work. Modern Law Review, 83 (3). pp. 558-582. ISSN 0026-7961

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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.

Item Type: Article
Keywords: labour law, agency workers, sham, necessity, legal realism
Schools and Departments: School of Law, Politics and Sociology > Law
Depositing User: Amir Paz-Fuchs
Date Deposited: 15 Nov 2019 10:51
Last Modified: 25 Mar 2021 13:59

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