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Date
2026-02
Abstract
This thesis argues that the current regulation of atypical work is anachronistic and consequently inappropriate for the rapidly changing labour market of the twenty first century. While the term atypical work is somewhat nebulous, this thesis discusses how the term came to represent a category of working relationship that do not conform to what is known as the Standard Employment Relationship (typical worker). In that the term represents a variety of working relationships where the primary commonality is that they are something different to the Standard Employment Relationship. However, being designed primarily to provide protection for so-called ‘typical workers, the current regulation is a poor fit for atypical workers, for two reasons.
First, although some issues are common to all categories of workers, some of the issues faced by atypical workers are significantly different to those faced by typical workers. Nevertheless, (although there are some notable exceptions) the bulk of the current regulation is aimed at providing parity between typical and atypical workers. Consequently, the regulatory protection provided for typical workers may not meet the specific needs of the differing categories of atypical workers.
Secondly, and of more significance, the scope of the current regulation is determined through an analysis of the contractual arrangements of the hiring relationship. However, considering the disparity of bargaining power between a hirer and an atypical worker, quite often the contractual provisions are designed for the benefit of the hirer. This can be quite an unenviable position for a vulnerable worker, and one that can significantly undermine the purpose of the regulatory protection.
This thesis undertakes an examination of the current provisions for workers who would be categorised as atypical. In discussing the current regulation, the thesis highlights the lacunae and how these lacunae can impact on workers. The thesis proposes two distinct approaches for dealing with these issues.
The first approach is to use the current dichotomous structure of the labour market (employee versus independent contractor) as a basis for targeted regulation for each category of worker. This approach is proposed as a means of filling the current lacunae, with the minimum of disruption to the structure of the labour market.
The second approach is to restructure the labour market so that all natural persons who provide a service to another, for emolument, would be classified as a worker and have the potential to avail of the full panoply of regulatory protection. The key point in this proposal is that instead of analysing the contractual relationship for signs of vulnerability, it is the balance of market power between the contracting parties that would be analysed. Where one party has significant market power over the other, the weaker party would be classified as vulnerable, with the concomitant suite of regulatory protection. To define vulnerability, a cue is taken from the concept of ‘dependency’. In that a worker’s impecuniosity, and concomitant economic dependency (or their dependency for other reasons) on a particular hiring, can be identifiable as a source of weakness in their market bargaining position. Thus, a worker who is dependent on a particular hiring, can be termed as vulnerable. The key advantage to this proposal is that the regulatory protection is provided to individuals when they are in vulnerable situations, as distinct from when their contractual arrangements are constructed in a specific manner.
Although this approach could be potentially adopted globally, the thesis focused on the Irish, European and International Labour Law provisions.
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Peer-reviewed
Publisher
University of Limerick
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Keane_2026_Regulating.pdf
Adobe PDF, 1.83 MB
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Sustainable Development Goals
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Attribution-NonCommercial-ShareAlike 4.0 International