Atypical work refers to employment relationships not conforming to the standard or ‘typical’ model of full-time, regular, open-ended employment with a single employer over a long time span. The latter in turn is defined as a socially secure, full-time job of unlimited duration, with standard working hours guaranteeing a regular income and, via social security systems geared towards wage earners, securing pension payments and protection against ill-health and unemployment.
Although the number of workers in non-standard employment has grown significantly over the last two decades, they continue to be regarded as in ‘atypical’ employment. In terms of legal regulation, the debate has thus focused on the distinction between ‘typical’ and ‘atypical’ employment, which is the result of the disintegration of the standard employment relationship and the emergence of new forms of work involving part-time, casual, fixed-term, temporary agency workers, self-employed, independent or homeworkers and teleworkers, to name but a few. There is an important gender dimension to the debate on atypical work, as men are disproportionately represented in standard employment relationships and increasing numbers of women in the labour force work under atypical conditions.
At EU level, the regulation of atypical work has taken a number of directions. One was an attempt to formulate a new legal concept of worker/employee so that the legal category of ‘employment’ and the criterion of subordination should not be used as the crude instrument for making distinctions between workers. The Commission’s Communication on the Social Agenda of 2005 had proposed the adoption of a Green Paper to ‘analyse current trends in new work patterns and the role of labour law in tackling these developments’ (COM (2005) 33 final, Brussels, 9 February 2005). The subsequent Green Paper, Modernising labour law to meet the challenges of the 21st century, presented on 22 November 2006, noted the increase in the proportion of non-standard or atypical contracts, with a strong gender and intergenerational dimension, as women, older and also younger workers were disproportionately represented in non-standard employment.
A second direction is to focus attention on the issue of working time. The starting point is that workers with different working time schedules should not be a priori excluded from consideration when labour standards are in question. However, that is not to say that all should a priori benefit from the same labour standards. It is probable that different working time schedules imply different needs, and hence different standards may be applicable.
EC law on atypical workers reflects how the grounds for discrimination have been extended. The right of atypical workers to equal treatment, regardless of characteristics such as sex, race, age and disability, highlights a new dimension of the equality principle in equality law. It requires equal treatment of workers, regardless of working hours, duration of employment, place of work or the nature of the employment relationship. These concepts were key in the directives on part-time work and on fixed-term work. Directive 97/81/EC (15 December 1997) on part-time work embodies the non-discrimination principle so that such workers have the right to equal treatment. A similar model applies in relation to fixed-term work (Directive 1999/70/EC). In relation to telework, a European framework agreement between the EU social partners, signed on 16 July 2002, regulates areas such as employment conditions, health and safety, training and collective rights.
The other main area of legislative action has been to extend these principles to temporary agency work, which had been excluded from the directive on fixed-term work. The legislative gestation of this proposal was lengthy, but in October 2008 the European Parliament voted in favour of Directive 2008/104/EC, which came into force on 5 December 2008 and which gives Member States three years to introduce into national laws.
See also: casual worker; contract of employment; economically dependent worker; employee; fixed-term work; fragmentation of the labour force; framework agreement; part-time work; proof of employment; seasonal work; self-employed person; telework; temporary agency work; undeclared work.