The big think

New forms of employment | the legal challenges

If Dolly Parton was sitting down in 2015, rather than in 1980, to write ‘9 to 5’ – her high-energy ballad about the monotonies of working life – she might have a lot more material to work with. In its day, the song – soundtrack to the film of the same name – became something of an anthem for set-upon office workers, and it stayed that way for many years.

However, it’s fair to say that working life has now changed quite radically for many people and all the indications are that it will change a great deal more in the years to come. We are seeing a rapid spread of new forms of employment across many markets, with a growing emphasis on flexibility. The old routines of work have not, by any means, disappeared, but people are increasingly likely to have a very different relationship with work today than the one so bitingly characterised in the song.

These shifting patterns of work life, however, have two sides to them. On the one hand there is an increasing drive from employers to seek more flexible work arrangements to capture greater efficiencies, both in work practices, resource allocation and in costs – a trend that has intensified since the financial crisis. While some of those new forms of employment may suit both the employer and employees well, they could also result in much greater insecurity for workers – the spread of zero hours and other casual contracts in liberalised markets like the UK and the U.S. are an extreme case in point.

At the same time there is a growing demand from employees for less routine and, therefore, more flexible, work arrangements – a phenomenon particularly apparent among young people (so-called ‘millennials’) just entering the labour market. They tend to be more mobile, interested in working in a number of fields rather than sticking doggedly to one employer or set career path, and have a much more fluid attitude about how work and the rest of life fit together.

Technology has played a huge part too. Digitalisation and the telecommunications revolution have, more than anything, made new ways of working a reality. Armed with a laptop, a smartphone and a good wi-fi connection, many professionals can do a great deal of their work whenever and from wherever they want, whether that’s at a hot desk or in a home office.

Very different approaches to these new forms of employment are already apparent in different jurisdictions. But one almost constant feature of all jurisdictions is the fact that employment law is lagging far behind actual practice in the marketplace. That puts employers and their legal advisors in tricky territory in deciding to what extent they can embrace new working methods.

As Claire Toumieux, who leads Allen & Overy’s Employment practice in Paris, puts it: “These new work patterns clearly demand changes in employment legislation. But as the law is likely to continue moving quite slowly, they also demand much more creative approaches from employment lawyers in helping clients get to grips with the issues and implement new working practices.”

In this, the fourth edition of Allen & Overy’s Big Think, we look at the most prevalent new forms of employment, the legal constraints imposed by existing labour regulations and the legal challenges they present. And, drawing on the expertise of lawyers across our global network as well as clients and leading researchers, we ask: what does the future of work really look like? 

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