An analytical framework for employment regulation: investigating the regulatory space
| DOI | https://doi.org/10.1108/ER-01-2016-0021 |
| Published date | 03 April 2017 |
| Date | 03 April 2017 |
| Pages | 291-307 |
| Author | Cristina Inversi,Lucy Ann Buckley,Tony Dundon |
| Subject Matter | HR & organizational behaviour,Industrial/labour relations,Employment law |
An analytical framework for
employment regulation:
investigating the regulatory space
Cristina Inversi
Alliance Manchester Business School, University of Manchester, Manchester, UK
Lucy Ann Buckley
School of Law, National University of Ireland –Galway, Galway, Ireland, and
Tony Dundon
Alliance Manchester Business School, University of Manchester, Manchester, UK
Abstract
Purpose –The purpose of this paper is to advance a conceptual analytical framework to help explain
employment regulation as a dynamic process shaped by institutions and actors. The paper builds on and
advances regulatory space theory.
Design/methodology/approach –The paper analyses the literature on regulatory theory and engages
with its theoretical development.
Findings –The paper advances the case for a broader and more inclusive regulatory approach to better
capture the complex reality of employment regulation. Further, the paper engages in debates about the
complexity of employment regulation by adopting a multi-level perspective.
Research limitations/implications –The research proposes an analytical framework and invites future
empirical investigation.
Originality/value –The paper contends that exi sting literature affo rds too much attention to a (f alse)
regulation vs deregula tion dichotomy, with insufficient analys is of other “spaces”in which labour policy
and regulation are form ed and re-formed. In part icular, the proposed fra mework analyses four dif ferent
regulatory dimensions , combining the legal aspects of r egulation with self-regu latory dimensions of
employment regulatio n.
Keywords Regulation, Industrial relations, Labour law, Employment relations, Regulatory space,
Regulatory theory
Paper type Conceptual paper
1. Introduction
Regulation has long been a key issue in current national and European debates.
For instance, the OECD (2012) has argued that better regulation could improve “economic
and social welfare prospects, underpin growth and strengthen resilience”. However, the
increased attention on the improvement of regulatory techniques and the concrete
experience with regulatory issues may divert attention from a conventional understanding
of how employment regulation occurs.
The aim of this paper is to contribute to the debate on the specific subject of regulatory
theory in the area of labour law and employment relations, to better understand the dynamic
nature of employment regulation. The traditional approach that divides types of regulation
between “command and control”and self-regulatory mechanisms seems to require today a
deeper investigation, able to connect labour law regulatory theory with a broader
socio-political discourse. Starting by considering the sources of employment regulation, the
paper contributes to discussion on regulatory theory by providing further nuances
surrounding areas of “self-regulation”. We argue that the regulatory approach in the area of
employment relations cannot be exclusively focussed on the technical legal perspective,
but should also examine other ways in which regulation can occur, and how these combine
to form the current regulatory pattern. From this, we outline an analytical framework that
Employee Relations
Vol. 39 No. 3, 2017
pp. 291-307
© Emerald PublishingLimited
0142-5455
DOI 10.1108/ER-01-2016-0021
Received 30 January 2016
Revised 4 September 2016
Accepted 12 December 2016
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/0142-5455.htm
291
Investigating
the regulatory
space
can enhance understanding of the more dynamic nature of the activities concerned with
employment relations regulation.
The paper is structuredas follows. Section 2 outlines theneed for a broader perspective on
employment regulation. Section 3 discusses the theory of “regulatory space”, tracing its
development fromthe theoretical conceptualisation outlined by Hancherand Moran (1989) to
recent contributions by Vibert (2014)and MacKenzie and Martinez Lucio(2005, 2014), among
others. In Section 4, the paper addresses current understandings of regulation, deregulation
and, importantly, the politics of “re”-regulation. Finally, the paper presents the (multi-level)
analytical framework, which helps advance knowledge beyond the singularly narrow or
exclusively legal discourse on employment regulation.
2. Employment regulation and the transformation of work
Regulation is traditionally conceived as a governmental activity, exercised by national
(or supranational) institutions or other bodies, including corporations, trade unions,
self-regulators, professionals, trade bodies or voluntary organizations. The spectrum of actors
intervening in the regulatory activity is broad and subject to change, according to “when”and
“where”regulation happens (Hancher and Moran, 1989; MacKenzie and Martinez Lucio, 2014).
Increasingly, state and non-state actors are involved “in the interstices of institutional dialogues,
either on their own initiative, or when solicited by other actors”(Sciarra, 2011, pp. 405-406).
Regulation is often seen as an instrument for restricting and embedding human
behaviour, but also for preventing undesired outcomes; it may also have an enabling and
facilitative role (Baldwin et al., 2012)[1]. Regulation can be explained by several methods and
from multiple perspectives: the approach that this paper will explore is the institutionalist
dimension of regulation and, more precisely, the institutionalist theorization given by the
metaphor of “regulatory space”(Hancher and Moran, 1989).
Among many others purposes, the regulatory activity of a democratic society in the area
of the employment relationship has –from the traditional perspective of labour law at
least –the clear objective of balancing the interests of the parties to the employment
contract (the employer and the employee), limiting their freedom to contract through various
dispositions, concessions and constraints (Kahn-Freund, 1972). Recognition of the historical
imbalance between the employer and the employee has been the corner stone of several
norms for the protection of workers in many European legal systems[2]. However, the
emergence of new forms of work and employment which cannot rely exclusively on
the standard employment contract (i.e. “atypical”,“flexible”jobs; growth in self-employment
or dependent self-employment) calls into question the traditional assumptions of contractual
subordination, and other factors such as new managerial strategies endorse employer power
and control (Stone and Arthurs, 2013).
Scholars direct attention to models of regulation that take account of legal,
supranational and collective regulation (Collins et al., 2000; Collins, 2001; Dickens, 2004;
Sciarra, 2011; Stone and Arthurs, 2013). Furthermore, extant literature draws attention to
the changing nature of work and the decline of the standard employment relationship
(SER) (Adams and Deakin, 2014a; Stone and Arthurs, 2013). Current debates address
challenges beyond the SER, to the need to tackle the drifts from decent work, and to
balance equity, voice, fairness and performance in the employment relationship
(Budd, 2004). Transformations point to issues concerned with, for example, protecting
disadvantaged workers, implications arising from the “feminization of work”
(Rubery, 2015), globalization (Standing, 1997; Bray and Murray, 2000), labour flexibility
and job quality (Wood, 2016) and challenges coming from the internationalization of
labour and migrant labour flows (Dundon et al., 2007; Thompson et al., 2013).
In the European context, employment regulation has increased its complexity through an
expansion of (individualistic) legal rights in many aspects of labour relations (e.g. health and
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