Reimagining state responsibility for workers following COVID-19: A vulnerability approach

Published date01 September 2021
Date01 September 2021
Subject MatterArticles
Reimagining state
responsibility for workers
following COVID-19:
A vulnerability approach
Lisa Rodgers
In this article it is argued that the COVID-19 crisis offers an important opportunity for
engagement and reflection on the operation and effectiveness of laws regarding the
workplace in the UK and beyond. The crisis underscores the temporality and partiality
of labour law measures, and the need for a reimagining of that law based on more
sustainable principles. I argue that this reimagination should coalesce around a human-
centric approach to law, and the recognition of the need for deep and varied institutional
support for workers. It is argued that these principles have been adopted historically in
the context of health and safety law, but have not always been well applied, particularly in
the context of the pandemic. In any event, the adoption of these principles and the
greater integration of health and safety and labour law would encourage states to better
promote worker agency and resilience and hence move towards meeting the aspirations
of vulnerability theory.
Vulnerability theory, labour law, workers, health and safety, human-centric approach
The coronavirus crisis provides an important moment for engagement and reflection on
the regulation of the workplace in the UK and beyond. Already, we have experienced
University of Leicester, Leicester, UK
Corresponding author:
Lisa Rodgers, University of Leicester, Law School, Leicester LE1 7RH, UK.
International Journalof
Discrimination and theLaw
ªThe Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/13582291211031377
2021, Vol. 21(3) 191 –211
192 International Journal of Discrimination and the Law 21(3)
governmental interference and involvement in the management and operation of work
unprecedented in peacetime. State instigation of ‘stay at home’ rules to stop the spread of
the virus, the closure of workplaces, and restrictions on travel and social interactions are
just some of the government policies which have fundamentally altered the working
landscape in the wake of the crisis. Some of these interventions will inevitably be short
term, such as income protection or ‘furlough’ policies, which act to try to reduce or delay
unemployment during temporary business closure. Other policies present the possibility
of permanent changes in the organisation of work into the future. In any event all of these
interventions invite a reflection on the changing landscape of legal regulation of the
workplace, and the best means of responding to these changes going forward.
Perhaps surprisingly, there have been few changes to labour law legislation in the UK
in the wake of the coronavirus crisis, despite the very dramatic impact of the crisis on
workplaces and the organisation of work. Indeed, in the immediate response to the crisis,
the main action of the UK government has been to deregulate or provide derogations
from labour law, to allow businesses the flexibility to respond to the crisis and thereby
maintain employment and service delivery (Ewing and Hendy, 2020, p. 498). For exam-
ple, in March 2020, the UK government introduced regulations to ease the requirements
on businesses to ensure that workers take their annual leave in any 1 year (Working Time
(Coronavirus)(Amendment) Regulations 2020). Two ex ceptions to the working time
rules were enacted. The first exception permitted employers to require workers to carry
over leave where it was not ‘reason ably practicable’ for them to tak e it due to the
coronavirus emergency, and the second allowed the outstanding leave to be carried over
into the 2 years immediately following the relevant leave year. These provisions ensure
that employers can require staff to carry on working during t he pandemic without
financial penalty (Hoskins, 2020). By contrast, there has in some ways been a ‘re-
regulation’ of the work environment through a series of health and safety measures. The
UK government has enacted sweeping powers relating to potentially infectious persons
in the Coronavirus Act 2020 and has introduced a huge wealth of guidelines for busi-
nesses with the aim of reducing the risks of virus transmission in the workplace (Depart-
ment for Business, Energy and Industrial Strategy, 2020a). These have been supported
by dedicated guidance and advice from the Health and Safety Executive (HSE, 2021),
the principal health and safety enforcement body in the UK.
It is argued in this article that the limitations of the labour law response for workers
during the COVID-19 crisis is a function of a number of systemic weaknesses in this
model for the regulation of the workplace and the protection of individual workers. It is
further argued that vulnerability theory provides the best means to articulate the reasons
behind those weaknesses and understand labour law’s ineffectiveness in dealing with this
crisis. The question then arises how best to rebuild or shape labour law to meet the ends
of vulnerability theory and to ensure state responsiveness to the needs of labour. The
argument put forward in this article is that, on its face, the scheme of health and safety
law and protection is fertile ground for exploring effective responses to vulnerability in
the workplace in the wake of the COVID-19 crisis. Health and safety law is not hindered
by historic accountability to a certain set of ‘vulnerabilities’, but rather takes a wider
view of vulnerability as human condition. Health and safety law also envisages a
response which involves not only government directives, but also the involvement of
2International Journal of Discrimination and the Law XX(X)

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