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Work without fear? The legal construction of structures of exploitation

The concept of exploitation is at the heart of labour law, but has been underexplored in labour law scholarship. ‘Exploitation’ is increasingly used in public discourse as a rhetorical device to criticise the ill-treatment of workers as immoral. In a piece published one year after the enactment of the UK Modern Slavery Act 2015 (MSA), for instance, Theresa May emphasised her commitment to combat the ‘cruel exploitation’ of victims of slavery, servitude, forced and compulsory labour, and human trafficking. Her Government aimed to achieve this through criminalising the conduct in question. I have written more on this here. 

The concern that I want to highlight in this piece is that the current rhetoric on labour exploitation obscures the moral wrong of exploitation. The use of the concept has at least two problems: first, as Chris Pesterfield argues elsewhere in this issue, it takes an unduly narrow approach to labour exploitation and distracts from instances of widespread workplace injustice that may not reach the level of cruelty that we find in cases of modern slavery. Second, this rhetoric obscures the fact that at times, possibly unintendedly, it is the law that creates structures that place workers in a position of vulnerability to exploitation. What happens is that even though structures of exploitation may be created routinely by law and may be part of our everyday lives, they do not spark the moral outrage that modern slavery does. I will address each of these issues in turn. 

Exploitation 

There is scholarship in political philosophy that analyses the concept of exploitation in order to identify the moral wrong at stake. These philosophical accounts can provide us with a critical lens through which we can assess the role of political rhetoric and the contribution of the law. They can be divided into opportunistic, on the one hand, and structural accounts of exploitation, on the other. Opportunistic accounts chime to a certain extent with the modern slavery agenda. Structural accounts challenge it. 

Opportunistic accounts of exploitation focus on the fairness of a transaction between individuals. What matters is whether this specific transaction between two parties is just. If it is not, and someone has taken unfair advantage of another, then she or he is responsible for the injustice. Background structures are neglected. What is crucial is the blameworthiness and responsibility of the person who took advantage of the other. Some of this theoretical work may be viewed as supportive of the modern slavery agenda because of its focus on individual responsibility for wrongdoing between exploiters and victims of exploitation. The modern slavery agenda focuses on prosecuting unscrupulous individuals, employers who take advantage of victims. Against this background, the MSA makes these individuals accountable through criminal law, and punishes them with severe penalties. When describing workers’ exploitation, the media also very often focus on individual wrongdoers and victims, as we see here for instance. 

Yet other accounts of exploitation are primarily concerned with background structures of injustice that create vulnerability and lead to exploitation. For Marx, exploitation was not an issue of cruel individuals who take advantage of each other. The problem is market structures, which place all workers (as a class) in a position of vulnerability, forcing them to work for capitalists’ gain. What is crucial for Marx and for some contemporary theorists writing on exploitation is the role of background structures that create injustice. Even if we do not agree with Marx that all workers in a capitalist system are exploited, it is crucial to consider the role of structures that give rise to particularly exploitative situations, as Jo Wolff argued insightfully in an essay in this book 

Building on Marxian insights, it is misleading to place all our attention on individual responsibility, for it is social structures that place people in a position of vulnerability to domination and exploitation. 

Legal Structures 

There are different social structures that place workers in a position of vulnerability to exploitation. What I find particularly troubling is that at times, it is the law that creates structural vulnerability to workplace exploitation, as I argue here. In such examples we are faced with two wrongs: a political one, which consists in the creation of vulnerability by the state when it knows or ought to have known that the legislation  constitutes a basis for exploitation; and the actual exploitation, which is most of the times an interpersonal wrong. 

When I talk about the role of the law in constructing structures of vulnerability to exploitation, I do not mean our legal system of property as a whole. I refer to something narrower, a special legal vulnerability. Some laws, for example, create a special structural vulnerability to exploitation by excluding groups of workers from protective rules. A result of this is that categories of workers are placed in a position of oppressive subordination more extreme than the inequality and subordination that typically characterises the employment relation. The focus on the role of the law in constructing structures of exploitation shifts our attention away from individual wrongdoers and their culpability, to the role of the law and state responsibility. 

The role of the law in constructing structures of exploitation may come as a surprise to some. Typically, when we consider the role of the law in this context, we examine and propose legal interventions that can help equalise workers and employers. The law is supposed to address, rather than facilitate, workers’ subordination.  

However, the law does not always address this subordination. I will refer to three examples where the law creates structures that place workers in a special structural vulnerability to exploitation. First, let us consider migrant workers. Bridget Anderson argued powerfully that immigration controls undermine workers’ rights. A good example in the UK is that of migrant domestic workers, who are in the country under a very restrictive visa regime that makes it extremely difficult or, in reality, impossible for them to change employer. Despite the fact that there is empirical evidence that links this visa with severe exploitation, and the fact that it became a central political issue during the passing of the MSA, the Government resisted calls to amend it substantially. This particular category of workers face several other legal exclusions from labour protective rules, and are systematically exploited. 

Prison work, or work in immigration detention, is another example where the law creates structures of vulnerability to exploitation. In the UK and other countries many prisoners work, and this can be advantageous. However, labour law excludes prisoners from protective rules. For instance, workers in prison are not entitled to the minimum wage. In a report of the Howard League for Penal Reform it was documented that the average pay for prison service work is £9.60 per week. Similarly, detainees working in immigration detention centres, many of which are privately run, are also in a position of structural vulnerability created by the law. They engage in work, such as cleaning, cooking and other essential work for the maintenance of the centres, but are paid only £1 per hour, according to the Detention Services Order 01/2013. The exploitation of detainees in immigration detention centres was recently strongly criticised by Bales and Mayblin. 

A third category of workers who are placed in a special structural vulnerability to exploitation are workers under zero-hour contracts, namely contracts with no guaranteed hours of remunerated work. Here I will focus on care workers under such contracts. Care workers are people who support others in their homes by helping them with basic daily activities, such as washing and feeding. Empirical work conducted by Lydia Hayes has shown that these workers are in a position of disadvantage that is facilitated by the law. Hayes has particularly criticised the Care Act 2014, for instance, for undermining the protection of their minimum wage rights. The majority of care workers are employed under zero-hour contracts, which means that they do not have a guaranteed number of hours per day or per week. They work and are paid for periods of 15, 30, 45 or 60 minutes per day for each individual in need of care. Most travelling time is unpaid, and so is time spent on training, assistance provided in emergency, and time between visits. It was established in 2014, for instance, that 220,000 home-care workers in England were earning below the minimum wage. These workers are not explicitly excluded from minimum wage protection. They are faced with a situation where the state knows that the legal system creates this special structural vulnerability. The Care Act, the zero-hours contracts arrangements, and the regulation of their working time create the conditions for care workers’ special structural vulnerability to exploitation, which is systematically exploited. 

Recognising the role of the State 

As we shift our focus from migrant and prison workers to workers under zero-hour contracts and care workers we realise that exploitation facilitated by legal structures becomes widespread and routine. It is part of our everyday life, but hardly sparks the moral outrage in public discourse about the role of that state that the rhetoric of modern slavery sparks in relation to the role and responsibility of individual wrongdoers. This needs to be challenged. 

As part of the modern slavery rhetoric, Theresa May said that her purpose is to ‘enable everyone in society to work without fear’. The existence of laws that place workers in a position of structural vulnerability to exploitation does not achieve that. The current rhetoric targets some extreme forms of workers’ abuse, but turns a blind eye to the role of unjust structures in routinely creating conditions of vulnerability to exploitation, from which either private employers or the state itself benefit.  

That the law places workers in such a position is shocking. It makes us question just how genuine the Government’s commitment to tackle exploitation is. It must also give rise to a call for accountability, not just of individual wrongdoers but of state authorities themselves for the reason that they create or facilitate this injustice. The categories of workers presented above are already in a position of structural disadvantage for reasons such as gender or race. That the law reinforces their vulnerability is equal to kicking them when they are down giving rise to an urgent call for legal reform.  

 

Virginia Mantouvalou is Professor of Human Rights and Labour Law at UCL, Faculty of Laws, and co-editor of the UK Labour Law Blog. The argument in this piece is further developed in an essay in the book Philosophical Foundations of Labour Law, Collins, Lester and Mantouvalou (eds) OUP, 2018.