Employment relationships are about power

30 April 2015

People with power are treated well and rewarded. People without power are treated badly and exploited. So it is, so it was and so, probably, it always will be.

Employment law, including the ability of both employer and employee to enforce it, is best understood as being one part of a more complicated power relationship.

The power dynamic, within an employment relationship, is complicated and multifaceted. In many cases, employment law isn’t a particularly important part of the picture. There are lots of sources of power, most of which have nothing to do with legal rights.

Probably most important factor in the power dynamic is the ease with which an employee can leave or be replaced. Skilled employees are harder to replace and so have more power, in general, than unskilled employees. If a post needs or benefits from a deep knowledge of the employer’s organisation, an employee who has built up that knowledge over a period of years has power. An employee who has a public profile, or close connections with an employer’s clients, is harder to replace and so has power.

Similarly, in times and places unemployment is low and there are lots of available jobs, an employee has greater freedom to move on – and therefore power. Or, if a particular employee is, for whatever reason, in demand elsewhere, they have leverage.

There are softer aspects of the power relationship. In particular what we might call cultural capital. One of the theories for why failing senior executives tend to be treated rather well, in terms of dismissal and compensation packages, is that they are similar sorts of people to those who are dealing with them. There is a tendency to think, consciously or subconsciously, ‘I could be in his shoes’ and act accordingly. People from a different background to the people managing them are potentially at a disadvantage, because they are viewed as ‘other’. And this is true whether the difference is in gender, race, sexual orientation, education or anything else.

Personal characteristics and abilities are a type of power as well. A confident and articulate employee has more power than a nervous and inarticulate one, because the former is better able to manage the relationship with their employer.

The importance of these power dynamics, I think, is one of the reasons that people get confused about the need for employment law. It’s easy, if you’re someone valuable skills and strong cultural capital, not to mention confident and well spoken, to project your experience of the workplace onto others without those advantages.

For example, I remember David Cameron speaking about the private conversation legislation that allows employers to have ‘off the record’ talks with employees which can’t be relied on in unfair dismissal proceedings. If there’s a problem, he suggested, why wouldn’t you want to have an honest, straightforward conversation with your boss about it, so you can get it sorted out? I feel that was his honest view – but it’s the view of someone who has a particular experience of employment, during which he’s had significant power. It’s not the experience of lots of employees.

If we’re worried about people being mistreated and exploited in employment, the people we need to be concerned about are those who lack power. That means people working in unskilled and commoditised jobs, who are likely lack the cultural capital and personal characteristics to balance the employer’s power.

The point of employment law, really, is to give those people, without other sources, a bit of power. That, we hope, means they will be treated better than they otherwise would.

That’s what makes things like employment tribunal fees and zero-hours contracts so dangerous. They take power away from people who are already in an unbalanced power relationship with their employer. And the more unbalanced that dynamic becomes, the more likely they are to be badly treated.

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