Practical Law

It ought to feel like good news, that the number of jobs being advertised in the online gig economy is on the increase. But somehow it just feels sinister, that there is a growing trend to engage remote workers for piecemeal, short-term or project-based work delivered over the internet (for example, see Amazon Mechanical Turk). Much like the “lots of people love zero hours contracts” line of argument, there are probably those who would say that the way forward is the gig economy, that it is liberating and what we need to free ourselves up from the unimaginative 9 to 5 routine. But having to pitch your skills every few days or weeks (and at the right price in a potentially borderless economy) would surely soon become exhausting as a way of life, and make it impossible to plan anything resembling leisure time or a future.

What has become of the world of work if it is reduced in such a radically stark way to an end-product, with all the human dimensions of what it is to be a worker (actual relationships with people, a shared culture, a physical workspace) stripped out? The fluid and dynamic nature of the labour market has always been with us. It was described in 1997 (in the Malik case) in this way: “Employment, and job prospects, are matters of vital concern to most people. Jobs of all descriptions are less secure than formerly, people change jobs more frequently, and the job market is not always buoyant. Everyone knows this. An employment contract creates a close personal relationship, where there is often a disparity of power between the parties. Frequently the employee is vulnerable.” But add uberisation of work to the inherent instability of the labour market and the vulnerability of the individual and you have a very bleak, atomised structure (if indeed it can be called a structure).

The nice thing about a good old-fashioned disparity of power between the parties is that you know where you stand: you can try and influence the relationship, accept the inequality or lock horns. You can join a union; you can join an employer’s federation; you can seek legal advice about the other party’s intransigence. But when everything is transacted digitally, with all the context of relationship taken out, there is no scope for a dialogue about the relative bargaining power of the parties. There is the appearance of a level playing field: you sell, I buy labour on this occasion. But the conditions under which I toil are now my private concern, nothing to do with you, the buyer of those services.

If the worker is destined to become an almost invisible phenomenon, to what extent will employment rights become a figment of the lawyer’s imagination (a lawyer possibly now working online in a virtual law firm)? How are employment lawyers out there feeling about the dying relevance of the traditional employment law model, based on the idea of loyalty, personal service and the unique offering of the individual’s contribution?

There are other ways in which technology is changing the way in which even the traditional workplace is being reconfigured into a space where the worker is almost invisible. Agile working, supposedly beneficial for collaboration, is perhaps a way of discouraging the worker from thinking of the workplace as a second home, a place to make relationships in, a place to store belongings, a place where you might sometimes be allowed to get attached to the environment. But are human beings truly more efficient when treated less like human beings?

We seem to be moving far away from the world described in Johnson v Unisys (in 2000), in which the psychological and social importance of work was acknowledged: “over the last 30 years or so the nature of the contract of employment has been transformed. It has been recognised that a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognise this social reality..” In thirty years time, will our idea of identity have changed so much that we no longer look for it in actual things, people or places, but rely entirely on the notion of online presence?