Small steps for a giant leap in improving the regulation of atypical work

It is arguable that the dominant theme running through the current regulation for the protection of employees is that all employment relationships should be treated in the same way. While there are some notable exceptions, in general, the regulatory goal for protective statutes can be described as ‘formal equality’ between all employees. As commendable as such an effort may be, it misses the point that not all employees operate under the same conditions. This article argues that the current regulation of atypical work is not fit for purpose as, while parity with a typical employee is to be expected as the minimum to which an atypical employee is entitled, the different circumstances of atypical employees (which set them apart as being atypical) should be reflected in the relevant provisions. Currently, even where a vulnerable employee comes within the remit of a statutory provision, their reward is the same level of protection as a group of employees with whom they have little in common. Such a situation requires a resolution and so, this article focuses on providing practical solutions to the lacunae caused by using the parity model for regulation. Although acknowledging the wide variety of atypical working relationships, the statutory interventions proposed by this article relate to the currently regulated categories of atypical employees, viz part-time employees, fixed-term employees, agency employees and intermittent/casual employees. In making these practical proposals, the article raises an interesting question as to what types of working relationships should be legitimised by regulation. Currently, regulatory action is arguably more reactive than positive, inspired by a desire to ameliorate the harshness of some hiring practices, rather than dictate what hiring practices are desirable. Apart from slavery and/or trafficking humans, the current regulatory system does not prohibit any specific hiring practice. This observation leads to a discussion of the potential for regulation that would prohibit atypical work by promoting full-time ‘typical’ work. In noting a precedent for such a policy, the article proposes that prohibiting atypical work is not the preferred option. Instead, atypical work should be legitimised and regulated accordingly. From that perspective, the article discusses some of the more salient issues involved in each type of atypical work relationship and proposes some ‘small steps’ to greatly enhance the protective effect of the relevant regulation.