As the nature of work evolves, we need fresh solutions to employment regulation that go beyond union membership

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Seasonal agricultural workers are part of the growing group of people in non-traditional employment. (Photo by Dan Kitwood/Getty Images)

For better or worse, unions currently feel omnipresent. But within this political quagmire of public sector pay demands and strikes, the oft-quoted defence of unions is not merely their position as an immense vehicle of wage bargaining, but their historic role in the development of basic employment rights.

So it seems unusual that there still is an increasingly popular world of work that is for the most part unregulated and unrepresented, and arguably underestimated.

I’m talking about the people in “non-traditional” work. According to the Tony Blair Institute, 18.4 per cent of adults – 5.5 million people – did non-traditional work in the UK between 2019 and 2020.

While much of non-traditional work tends to focus on the gig economy, atypical employment actually spans multiple different types of work. It includes a broad range of different jobs – freelance consultants, self-employed tradespeople, Uber drivers, ambulance staff, or seasonal agricultural workers.

Given its sheer dynamism, non-traditional work necessitates an approach that explicitly acknowledges its unique nature, as opposed to applying old frameworks onto substantively different business models.

But there are obstacles to this. Employment regulation gets caught up in a predictable, tired debate that draws out the dogma on both sides of the political spectrum – heavy interventionism on one side, and radical deregulation on the other.

As with many policy problems caused by technological advances, it demands a more thoughtful, innovative approach transcending the same old arguments. Fundamentally, the nature of work is evolving, and this needs to be mirrored in public policy.

Yet employment regulation shouldn’t simply be an ambition of the left. There is, of course, a compelling fairness argument to be made. But aside from eroding worker rights, haphazard employment regulation limits the flexibility of both businesses and individuals. It can fly in the face of productivity as firms underinvest in training – contributing to the UK’s burgeoning skills crisis. Analysis from the Tony Blair Institute suggests that traditional workers are one and a half to three times more likely than non-traditional workers to receive employer funded training.

It should also not be underestimated how gaps and uncertainties in employment law are bad for businesses as well as – obviously – for individuals. Businesses who play by the rules are unnecessarily penalised against those evading them, which risks creating a race to the bottom on wages and working standards to remain competitive. Regulatory uncertainty limits innovation too – for instance, some platforms are held back from offering better conditions to their workers in case it’s taken as evidence that they are employing them.

Non-traditional workers are currently faced with an unlovely combination of weak bargaining power and weak employment regulations. The UK has the worst of both worlds – neither strong unions nor a robust system of legal protections for non-traditional workers.

To achieve more consistent regulation, actually tailored to the unique needs of non-traditional work, unions may be part of, but not the whole answer. To compound weak union membership, labour market regulation in the UK is haphazard and difficult to navigate, especially for non-traditional work. The decline of trade union power since the 1980s was not replaced by an alternative system of workers’ rights. Sporadic improvement through voluntary arrangements and lengthy court battles are about the extent of progress for non-traditional workers.

And as ever, it is not merely as simple as just moving on to a different job if the working conditions are so precarious. There are numerous benefits to non-traditional work – control, flexibility and a higher income –  and workers rightfully want to retain this. It can be a mutually beneficial arrangement.

Ultimately, it should be perfectly plausible to have a world with both employment rights and the flexibility offered by more freelance-like work. But it requires fundamentally different methods to those that have been applied before.

There can be very different settlements as to the right balance of rights and freedom in different types of work. Yet the need for representation so the worker can influence that settlement is common to all – even though representation might not always look like a traditional union. Two things can be true at once: unions are instrumental for worker representation, and new problems require new solutions.

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