Criminality at Work

cover
half title
Criminality at Work
Copyright
Table of Contents
List of Contributors
1. Criminality at Work: A Framework for Discussion
part 1
2. Workplace Welfare and State Coercion
A. Introduction
1. Social Democracy
2. Why a Social Democratic Perspective?
3. Social Democratic Criminal Law
B. Workers with no Right to Work
C. Physical Safety
1. The Health and Safety at Work Act 1974
2. Corporate Manslaughter
3. Never Safe Enough: The Case of Boxing
D. Pay—​The National Living Wage and Minimum Wages
1. Enforcing the Living and Minimum Wage
2. Employers Evading Paying the National Living Wage: Two Devices, Zero Hours Contracts; Working as an Independent Contractor
3. Employees Colluding with Employers to Evade the National Living Wage
4. Is the National Living Wage High Enough?
3. Using Criminal Law to Enforce Statutory Employment Rights
A. Introduction
B. Charting the Criminal Enforcement of Statutory Employment Rights
C. The Notion of ‘Public Wrongs’ in Criminal Law Theory
1. Introduction
2. Applying the Negative and Positive Versions of Public Wrongs Theory
3. Public Wrongs Theory: Getting from the Positive to the Absolute
D. Conclusion
4. Where Criminal Law Meets Labour Law: The Effectiveness of Criminal Sanctions to Enforce Labour Rights
A. Introduction
B. Defining the Powers
1. Gangmasters and Labour Abuse Authority
2. Employment Agencies and Employment Agency Standards Inspectorate (EASI)
3. National Minimum Wage and the HMRC
4. Working Time and the HSE
5. Office of the Director of Labour Market Enforcement
6. Preliminary Conclusions
C. Complexity of the Legal Response Created
1. Strict Liability Offences
2. Offences Requiring an Element of Mens Rea
3. Breach of Order Offences
4. Civil Liability Offences
5. Summary Conclusions
D. Why Have Some Acts of Non-​compliance Been Criminalized?
1. The Political Choices
E. Effectiveness of Enforcement Action
1. The Nature and Extent of Enforcement
2. The Risk of Enforcement
F. Conclusions
part 2
5. Exploitation at Work: Beyond a ‘Criminalization’ or ‘Regulatory Alternatives’ Dichotomy
A. Introduction
B. The Conceptual Framework
1. Connections between ‘Exploitation’ and ‘Work’
2. What is Exploitation in Work Relations?
3. What are the State’s Obligations?
C. Limitations of Criminal Law Interventions
1. ‘Internal’ Limitations of Criminalization
2. ‘External’ Limitations of Criminalization
D. Criminalization and Regulatory Alternatives: A Key Juncture
E. Multidimensional Regulation: Further Principles and Constraints
F. Conclusion
6. The Duty of Loyalty and the Scope of the Law of Fraud
A. Criminalization as an Additional Deterrent for Civil Wrongs
B. Fraudulent Omissions
1. False or Misleading Representation
2. Fraud by Failure to Disclose Information
3. Fraud by Abuse of Position
C. Relational Contracts
D. Obligations of Disclosure in the Contract of Employment
1. Mutual Trust and Confidence
2. The Duty of Loyalty or Fidelity
E. Duties to Safeguard the Financial Interests of the Other Party
F. Over-​criminalization?
7. Wage Theft as a Legal Concept
A. Introduction
B. What is ‘Wage Theft’?
C. Is ‘Wage Theft’ Theft?
D. Is What the Employee Has Lost ‘Property’ for the Purposes of the Theft Act 1968?
E. Wage Fraud
8. The Criminalization of Workplace Harassment and Abuse:  An Over-​Personalized Wrong?
A. Introduction
B. The Negative Effect of the Criminalization of Workplace Harassment in its Present Form
C. The Over-​personalization of Workplace Harassment as a Criminal Offence
D. Reform Proposals and the Role of the Criminal Law
1. Regulatory Activity at the International Labour Organization
2. Regulatory Activity in the House of Commons Women and Equalities Committee
E. Justifying a Role for Criminalization in Harassment Wrongs: The Role of Human Dignity
1. Employer Duties and the Criminal Law
2. Dignity and the Relationship between Criminal and Civil Law
3. Dignity and the Role of Consent
F. Conclusion: Bargaining in the Shadow of the (Criminal) Law
9. Sex, Work, and Criminalization
A. Introduction
B. Conceptualizing Commercial Sex: From Sex Work to Modern Slavery
1. Commercial Sex
2. Sex Work
3. Commercial Sexual Exploitation
4. Modern Slavery
C. Commercial Sex as Labour: Three Philosophical Issues
1. Commodification of Sex
2. Commercial Sex and Structural Inequalities
3. Commercial Sex and Adaptive Preferences
D. Criminalization and Commercial Sex
1. Criminalization and Commercial Sex: A Normative Account
2. Criminalization and ‘Commercial-​Sex-​as-​Work’
3. Criminalization and ‘Commercial-​Sex-​as-​Exploitation’
4. Criminalization and ‘Commercial-​Sex-​as-​Modern-​Slavery’
5. Criminalization and ‘Commercial-​Sex-​as-​Varied’
E. Conclusion
10. The Work of Sex Work: Prostitution, Unfreedom, and Criminality at Work
A. Introduction
B. The Case for Decriminalization: Safety, Sex, and Work
1. Safety and (De)criminalization
2. Prostitution as Sex, Prostitution as Work
C. Prostitution as Work: Labour and Criminal Law
D. Capitalism, Unfreedom, and Criminal Law
1. Exploitation and Alienation
2. The Continuum of Unfreedom and Class Struggle
3. History, Unfreedom, and Criminality at Work
E. Prostitution as Work and Criminality at Work
F. Conclusion: Prostitution as Work, Work and Freedom
11. Human Rights, Labour Rights, and Criminal Wrongs
A. Introduction
B. Human Rights and Positive Duties
C. Criminalization of Breaches of Labour Rights
1. Severe Labour Exploitation
2. The Modern Slavery Act 2015
3. Collective Labour Rights and Blacklisting
D. Overcriminalization/​Exclusive Focus on Criminalization
E. Conclusion
part 3
12. The Preventive Role of the Criminal Law in Employment Relations
A. Introduction
B. Offences of Omission
C. The Offence of Employing an Illegal Worker
D. The New Preventive Orders
E. Conclusions
13. Licensing of Employing Entities and Criminalization
A. Introduction
B. Licensing
C. Licensing and the Criminal Law
D. Licensing in Employment Settings
1. Gangmasters and Labour Abuse Authority
2. Employment Agencies and Businesses
3. Evaluation
E. Licensing and the Criminal Law in Employment Settings
F. Conclusion
14. Criminalizing Care Workers: A Critique of Prosecution for Ill-​treatment or Wilful Neglect
A. Introduction
B. A Workers’ Crime
C. A Crime against Caring
D. Ontological Confusion
E. Care Worker Prosecution
1. Ill-​treatment and Wilful Neglect in the Courts
2. In the Context of Social Care Work
3. Erasing Employment Relations
F. Problems of Abuse in Care Settings
1. The Organizational Dynamics of Abuse
2. Training and the Regulation of Conduct
3. The Making of Section 20 Criminal Justice and Courts Act 2015
G. Conclusion
15. The Medical Professional as Special before the Criminal Law
A. Introduction
B. The Criminal Law and the Doctor’s Exculpatory and Influential Professional Role
C. The Particular Criminal Liability that the Doctor’s Professional Role Attracts
D. Arguments Supporting the Criminal Law’s Special Treatment
1. Providing Doctors with Special Protection from the Criminal Law is Appropriate Because of the Nature of their Professional Role
2. The Special Attention of the Criminal Law is Required to Protect Patients Because of the Nature of the Doctor–​Patient Relationship
3. The Special Attention of the Criminal Law is Required to Address What are Perceived to be Both Private and Public Wrongs
E. Concluding Thoughts
16. Victim or Perpetrator? The Criminalization of Migration and the Idea of ‘Harm’ in the Labour Market Context
A. Introduction
B. Regulating Immigration—​Migration Control and Migration Status
1. Immigration Law’s Selectivity and Global Inequality of Migration Statuses
2. The Exclusion of Refugees from Regular Migration Opportunities
3. States’ Generation of Illegality
4. Immigration Law Enforcement
C. The Criminalization of Migration
1. Where’s the Harm?
2. Mala Prohibita? Immigration Regulations and Regulatory Crimes
3. Wrongfulness—​Defences for the Blameless—​Refugees and Victims of Trafficking
D. Some Consequences of Criminalization
1. Criminalization Begets Criminalization
2. Criminalization Blocks Regularization
E. Conclusion
17. Doing the Dirty Job: Labour at the Intersections of Criminal Law and Immigration Controls
A. Introduction
B. Criminal Law as an Institution
C. Historicizing Criminalization: Labour Market, Sovereignty, and Criminal Law (Late Eighteenth Century to 1900s)
D. Labour Protection, Citizenship, and Criminalization (early 1900s until 1980s)
E. Neoliberalism, Labour Deregulation, and Criminalization (1980s to Present)
F. Conclusion
18. Modern Slavery, Domestic Work, and the Criminal Law
A. Introduction
B. Background to the Modern Slavery Act 2015
C. Summary of the Legislation
1. The Section 1 Offence
2. Defence for Slavery or Trafficked Victims
3. The Independent Anti-​Slavery Commissioner
4. The Modern Slavery Act: An Assessment
D. Terminology
E. Domestic Labour
1. Feminist Analysis of the Nature of Housework
2. Modern Slavery and Domestic Abuse
3. Slavery, Domestic Abuse, and Patriarchy
F. Conclusion
19. The Persistence of Criminal Law and Police in Collective Labour Relations
A. Introduction
B. The Late Eighteenth and Nineteenth Centuries up to the Conspiracy and Protection of Property Act 1875: The ‘Classical’ Repression Phase
C. From Public Wrongs to Private Rights
D. The Continuing Presence of the Criminal Law
E. From Normal Law to Emergency Regulations
F. From Emergency to Reserve Powers: The Miners’ Strike 1984–​85
G. Trade Unions in the Shadow of ‘Enemy’ Criminal Law
H. Conclusion
part 4
20. Workplace Safety and Criminalization: A Double-​edged Sword
A. Introduction
B. Criminalizing Safety I: Health and Safety Offences
C. Criminalizing Safety II: Corporate Manslaughter
D. The Corporate Manslaughter Offence in Practice
E. Criminalization and Context-​dependency
F. Context-​dependency in Practice
G. Conclusion: Criminalization and the Regulatory Project
21. The Criminalization of Health and Safety at Work
A. Introduction
B. Health and Safety Law and Criminalization
C. The Health and Safety at Work etc Act 1974
D. The New Direction of Recent Policy
E. The Working Time Directive and Regulations
F. Conclusion
22. Accessory Liability for National Minimum Wage Violations in the Fissured Workplace
A. Enforcement in Crisis: The Limits of Primary Liability
B. Enforcement Strategies in the ‘Fissured’ Labour Market
C. The Structure of Criminal Accessory Liability
D. Broadening Liability: Lessons from Australia
E. Conclusion
part 5
23. Class Crimes: Master and Servant Laws and Factories Acts in Industrializing Britain and (Ontario) Canada
A. Introduction
B. The Role and Function of the Criminal Law
C. Master and Servant Law: Disciplining Workers
1. England
2. Canada (Ontario)
D. Factory Acts
1. UK
2. Canada (Ontario)
E. Conclusion
24. Criminalization, Social Exclusion, and Access to Employment
A. Introduction
B. Context, Background, and Themes
C. Use of Criminal Record Information in Employment Decisions
D. Formal Sources of Information on Criminal Backgrounds of Job Applicants
E. Policy and Areas Legislatures Carve Out to Support Certain Criminal Record Checks
1. Protecting Vulnerable Groups
2. Professional Employees
F. Ex-​offenders as Actors in the Labour Market and in Society
G. Employment and Recidivism
H. Employment and Social Inclusion and Exclusion
I. Legal Intervention to Assist the Vulnerable Job Seeker with a Criminal Record
1. Spent Conviction or Clean Slate Legislation
2. Anti-​discrimination Legislation
3. Other Legislative Protections
J. Adequacy of Legislative Intervention
K. Employment, Unfair Dismissal Legislation, and Criminal Behaviour
L. Impact of Informal Sources of Information about a Person’s Conduct on Employment
M. Concluding Comments—​The Need for Continuing Law Reform
25. The Carceral State at Work: Exclusion, Coercion, and Subordinated Inclusion
A. Introduction
B. Subordinated Inclusion: Frameworks and Foils
C. The Carceral State and Labour Market Exclusion
D. Intermediate Steps: Prison Labour, Channelling, and Wage Penalties
E. The Carceral State and Labour Coercion Outside of Prison
F. From Double Binds to Subordinated Inclusion
G. Conclusion
26. Restorative Regulation of Criminality at Work in Canada: Workplace Safety, Penal Law, and Human Capability Enhancement
A. Introduction
B. Penal Law and Worker Protective Regulation: Labour Standards and Occupational Safety
1. Statutory Labour Standards for Worker Protection
2. Earlier Criminal Law Regimes and Workplace Safety
3. The Westray Disaster: A Catalyst for Penal Reform of Workplace Regulation
4. Workplace-​related Reform of the Criminal Code
5. Reform of Specific Occupational Health and Safety Regimes
C. Human Capability Development via Penal Sentencing and Restorative Workplace Approaches
1. Sentencing, the General Part of Criminal Law, and Human Capacity
2. Capabilities Approaches and Labour Market Regulation
3. Sentencing Reform and Capability Enhancement
4. Human Capabilities and Restorative Approaches to Workplace Safety Offences
D. Conclusion
Index