Abstract
What happened to the emancipatory role of the law in strengthening workers’ uneven bargaining power and addressing the inequality inherent in the employment relationship?
Answering this question, Virginia Mantouvalou guides the reader through an oxymoron in contemporary legal systems, for the law perpetuates and amplifies unjust outcomes despite the commendable aim to do what is just.
The book is aimed at human rights, social security and labour law scholars, as well as adjudicators and policymakers, reflecting on the state's ability to revert current patterns of injustice. It focuses on the existential question of whether the law of work is producing unintended effects leading to structural, endemic, unjust consequences that are severely affecting the lives of working people.
Building on Iris Marion Young's theory of structural injustice (Responsibility for Justice, OUP 2011), the author contends that in specific regulatory areas concerning migrants, prison workers, welfare recipients, and atypical workers, the law contributes to increasing precarity and vulnerability. This is what Mantouvalou identifies as the ‘state-mediated structures of exploitation’ (p. 21). The book engages with, and goes beyond, a purely theorical perspective of identifying pure, avoidable, and deliberate forms of structural injustice.
The main claim of the book is that, precisely because it is the law's aim to ensure that working people are not affected by an induced ‘vulnerability to exploitation’ (p. 22), the state should be held responsible under human rights law for ‘knowing or owing to have known’ (p. 116) such exploitative effects. Alleged violations of basic human rights include the right to work, the prohibition of inhuman and degrading treatment, the right to a subsistence minimum, and the right to social assistance. The author concedes that human rights law can sometimes be difficult to enforce, and court's adjudication does not necessarily trigger legal change (p. 118). However, it remains a powerful instrument with which to identify responsibilities and induce such change through trade unions and other civil society groups.
The book is structed over three main parts. Part I situates the main claim against two key concepts, namely, ‘exploitation’ and ‘vulnerability’.
Workplace exploitation is defined as ‘taking unfair advantage of someone's vulnerability at work’ (p. 12). Vulnerability, in turn, is adopted as a synonym of disadvantage and injustice. Despite lacking a precise legal meaning, exploitation and vulnerability have been widely used in labour law studies as proxies for weakness and precarity, both within the employment relationship and in the labour market. In Part I the main question addressed by the book emerges in its magnitude: How can legitimately enacted labour laws come to result in aggravating, instead of combatting, workers’ vulnerability?
To formulate an answer, Part II of the book addresses four main snapshots of clustered disadvantage, which illustrate how the law on migrant workers, captive workers, welfare-to-work recipients, and precarious workers, has contributed to crystallising their vulnerability.
The four clusters described are then mirrored in Part III, where Mantouvalou translates the investigated situations into a human rights context, centred on the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as interpreted by the European Court of Human Rights (ECtHR). The book concludes by identifying specific state responsibilities for the creation and perpetration of workers’ vulnerability. It encourages adjudicators to reaffirm the primacy of human rights over the deficiencies of the law and, through strategic litigation, to trigger legal change.
The inference between welfare-to-work schemes and in-work poverty comes as the book's main argument and justifies specific attention. Welfare-to-work programmes are public schemes aimed at activating welfare recipients through offering them work opportunities. A problematic aspect relates to making the reception of welfare measures conditional on the acceptance of any kind of work, which risks forcing people into exploitative work and in-work poverty. The book identifies possible remedies to this, such as removing strict conditionality criteria from welfare-to-work schemes (p. 73), prohibiting zero-hours contracts (p. 83) and ultimately overcoming the rhetoric of personal responsibility in welfare-to-work programmes (p. 87). Empirically, the claim is supported by the argument that the reduction of benefits, restriction on access conditions and the lowering of suitable jobs have all contributed to plunging people into in-work poverty across European countries.
In reality, current structures of vulnerability and injustice leading to in-work poverty are not limited to welfare-to-work measures. The increase in the numbers of working poor across industrialised economies is much bigger than just an unfair outcome of welfare conditionality schemes. It is endemic in contemporary labour markets as an effect of different, heterogeneous determinants, including individual, household-related, and institutional factors (European Parliament, Resolution of 10 February 2021 on reducing inequalities with a special focus on in-work poverty (2019/2188 (INI)). Further avenues may derive from a normative standpoint, aimed at affirming distributional equality as a means to achieve minimum standards and allow individuals to develop their own capabilities, thus progressively reducing domination and social and economic vulnerabilities. An important step in this direction is Directive 2022/2041 on adequate minimum wages.
Not only does Structural Injustice and Workers’ Rights reinforce the importance of a human rights discourse in the field of labour law that is characteristically reluctant to absorb the logic and final outcomes of human rights adjudication; it also, and more fundamentally, questions the role of the law, of labour laws and welfare regimes in granting everyone the right to decent work that is understood as non-exploitative. This intercepts the fundamental principles enshrined in the (revised) European Social Charter, which puts the right to adequate earnings and to appropriate vocational training and rehabilitation at the core of its Article 1 and allows us to argue in favour of social adequacy as a normative yardstick at EU and domestic levels.
