Discrimination of Part-Time and Fixed-Term Workers
Hanna Pettersson
1. Introduction
I became a doctoral student, and came in contact with the Norma Research Programme, about halfway into the programme’s current lifetime. To me, the Norma ambition has always appeared to be a ‘non-dogmatic’ approach to legal science and law, and an interest in the interrelations between law and society at large. For a postgraduate student in legal science, this naturally constitutes a good starting point.
My doctoral thesis concerns the EU directives on fixed-term and part-time workers1; in particular the prohibitions of discrimination against part-time and fixed term workers. I analyse these legal regulations within a framework inspired by critical legal positivism, as elaborated by Kaarlo Tuori.2
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In critical legal positivism, law is conceptualised as consisting of three vertical levels. Beneath the surface level – consisting of the continuous discussion resulting in the sources of law – Tuori speaks of legal culture and the deep structure of law.
These layers are more stable than the surface level, where the contents of law actually change every day. Indeed, the levels change continuously as well, since law is positive; it is a result of human action.
Legal culture consists of law’s methodical elements; standards for interpretation and resolution of norm conflicts; and patterns of argumentation in legal decision-making and scholarship. Legal culture also comprises the general doctrines of different fields of law, as well as legal concepts and legal principles.
The deep structure of law is the most fundamental level of law, and also the most stable one. Unlike the surface level of law, the deep structure cannot be identified through any unambiguous criteria. However, it can be identified by reconstructive methods, as it is part of positive law.
In short, the deep structure contains a fundamental social theory of law.
Unlike other levels of law, the deep structure is very clearly influenced by the
‘social theory’ of society in general. This is a precondition for law’s legitimacy. In the current form of law – modern law – the deep structure is centred on concepts like legal subjectivity and subjective rights, mainly human rights. At its core is the view of people as autonomous individuals, free to form their own ties to other people according to their will.
Tools for internal, legal critique can be found within any of law’s layers, but mainly on the deep structural level. I use the idea of individual autonomy as a central part of law’s deep structure to analyse, and criticise, the inequality between employer and employee which is inherent in labour law.
As already mentioned, critical legal positivism is a means of ‘internal’
critique. I am not evaluating the practical effects of legislation or legal practices; nor do I claim to formulate legal strategies which could actually influence working life. My work concerns law as a social phenomenon.
Nevertheless, critical legal positivism is clearly oriented towards broader questions of society, and deals with law as a part of society.
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3. ‘Atypical’ grounds of discrimination?
When the fixed-term and part-time work directives were to be implemented within Swedish law, there was discussion about the discrepancies of the non-discrimination clauses, which are very central parts of the directives. In the law-making process, it was argued that discrimination of part-time and fixed-term workers should not be regarded as ‘real’ discrimination in the sense of, for instance, discrimination on grounds of sex. It was even discussed whether Swedish law should use the term discrimination at all.3 Of course, this raises the question of the nature of the common rationality – if in fact there is one – of discrimination law. In the Swedish discussion, several arguments were put forward which pointed to potential answers to this question.
Mainly, other discrimination grounds were said to be ‘personal characteristics’, while the status as a part-time or fixed-term employee was merely the result of a contract of employment. I argue that this proposed difference is exaggerated, as the individual legal subject, within contemporary law, is always conceived as shaped by social circumstances.
In my view, there is one common denominator for all discrimination law, which does not exclude part-time or fixed-term work at all: subordination.
Discrimination law deals with the conflict between different types of subordination, and the deep structural demand for individual autonomy.
Since the labour law subject of the employee is clearly and formally subordinated in relation to the employer, it is not surprising that labour law has been such a dominant area for the development of discrimination law.
Furthermore, it is not surprising that fixed-term and part-time workers – who are portrayed as less powerful and more subordinated than permanent, full-time workers in legal texts, and whose real-life counterparts actually are often less powerful and more subordinated, according to social science – have become the subjects of non-discrimination law.
3 See Proposition 2001/02:97, Lag om förbud mot diskriminering av deltidsarbetande arbetstagare och arbetstagare med tidsbegränsad anställning, m.m., p. 31 and p. 98.
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