Power Relations in Employment Disputes

DOIhttp://doi.org/10.1111/jols.12062
AuthorNicole Busby,Emily Rose
Publication Date01 Dec 2017
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 4, DECEMBER 2017
ISSN: 0263-323X, pp. 674±701
Power Relations in Employment Disputes
Emily Rose* and Nicole Busby*
This article reconceptualizes the operation of power relations in
employment disputes. We draw on Foucault's theory of neo-liberal
governance to inform our analysis of empirical data exploring how low-
income workers make decisions about whether to engage with the
Employment Tribunal system. Particular focus is placed on the ways the
state governs employment disputes to achieve ideologically driven
objectives. We conclude: first, that power relations in employment
disputes operate across a range of institutions and individuals, and that
the state's role is powerful and ongoing; secondly, that power relations
operate to shape not just the objective context that workers find them-
selves in when experiencing an employment dispute but also workers'
subjective moral codes about appropriate courses of action to take; and
thirdly, that despite the powerful influence of the state, workers
continue to hold non-economic values that guide their perception of the
appropriate basis for relations between employers and workers.
INTRODUCTION
It has long been accepted that power in the employment relationship
typically lies with the employer.
1
Indeed, labour law in the United Kingdom
developed on the basis that its major objective was to be a countervailing
force to the inequality of bargaining power which is ± and must be ± inherent
in the employment relationship.
2
Labour law once acted as a countervailing
force by facilitating collective bargaining. This assisted workers to define
key terms of the employment relationship and provided voluntary procedures
for dispute resolution. Today, with the vast decline in union membership,
most workers rely on protections afforded by a system of individual
674
*Law School, University of Strathclyde, Lord Hope Building, 191 St James
Road, Glasgow G4 0LT, Scotland
emily.rose@strath.ac.uk nicole.busby@strath.ac.uk
1 P. Davies and M. Freedland, Kahn-Freund's Labour and the Law (1983).
2 id.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
employment rights. These rights are enforced through the Employment
Tribunal (ET) and civil courts.
There has been a range of procedural changes in the past few years that
affect the way that workers are able to assert these individual employment
rights in the ET system. Scholars have critiqued these, viewing them as an
extension of a neo-liberal policy agenda in which the state acts to facilitate a
shift in the balance of power further towards employers.
3
Particular concern
has been raised about the difficulty workers face to gain substantive meaning
to statutory rights
4
and about issues of access to justice more broadly.
5
Underpinning these analyses appears to be various assumptions about the
operation of power in employment disputes. The state is framed as playing a
role in setting up the regulatory and structural framework for employment
dispute resolution based on its particular ideological position. But, once this
is done, power is largely viewed as operating across a binary divide between
employers and workers. One side will hold more or fewer of the tools of
power ± in terms of the regulatory and structural framework ± that they can
utilize to their advantage. We submit that this account is partial at best.
In this article we reconceptualize the way in which power relations
operate when workers face a problem at work. We do this by drawing on
Foucault's theory of neo-liberal governance and applying these ideas to an
empirical data set that captures detail of how low-income workers make
decisions about engaging (or not) with the ET system. Particular focus is
given to the ways the state governs the employment dispute process broadly
conceived to achieve its ideologically driven objectives.
We draw a number of conclusions from our analysis. First, we demon-
strate that power relations in employment disputes operate across a range of
institutions and individuals. It is not appropriate to view the action as playing
out simply between employers and workers. Rather, the role of the state, in
particular, is powerful and ongoing. Secondly, we show that power relations
operate not just to shape the objective context that workers find themselves
in when experiencing an employment dispute but also workers' subjective
moral codes about appropriate courses of action to take. This has the effect
of promoting economic rationality as the key criterion for decision making
about how to pursue, if at all, an employment dispute. It also has the effect of
675
3 B. Hepple, `Back to the Future: Employment Law under the Coalition Government'
(2013) 42 Industrial Law J. 213; L. Dickens, `Fairer Workplaces: Making Employ-
ment Rights Effective' in Making Employment Rights Effective: Issues of Enforce-
ment and Compliance, ed. L. Dickens (2012).
4 Dickens, id.
5 E. Rose et al., Employment Tribunal Fees: Effect on Clients of Citizens Advice
Bureaux (2015a), at
Employment_tribunal_fees_effect_on_clients_of_citizens.pdf>; E. Rose et al., The
Price of Justice: The Impact of Employment Tribunal Fees on CAB Clients in
Scotland ( 2015b), at http://ww w.cas.o rg.uk/sy stem/fil es/public ations/ The%20
Price%20of%20Justice%20final%20with%20cover%20and%20back.pdf>.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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