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61

CHAPTER

Legal Constructions 
of Body Work

Ann Stewart

 Introduction

This chapter explores the ways in which intimate, embodied and sexualized 
labour is regulated within the law in the United Kingdom by considering how 
the relationships involved are understood within law and highlighting the lim-
itations of the existing regulatory norms and frameworks. It takes two exam-
ples wherein the human body is used as the ‘material of production’. The first 
example involves the commercial provision of sex, the second caring for the vul-
nerable, particularly the elderly, undertaken predominantly within the home. 
The labour processes under discussion are only marginally recognized by labour 
law. As a result, those involved are unable to make use of its normative frame 
of reference, which is in part based upon addressing the risks associated with 
unequal bargaining power. At present commercial sex is heavily associated with 
the criminalized discourse of ‘prostitution’ and trafficking. Domiciliary-based 
caring involves a range of work-related arrangements undertaken by persons 
defined as domestic workers, social care workers/personal assistants and, very 
importantly, unpaid carers. We find that the legal construction of unpaid carers 
is located primarily within social welfare law whereas other domiciliary workers 
are addressed through the potential violation of their human rights.

This chapter considers the wider implications of these different legal loca-
tions, in particular the forms of legal protection available to those involved, 
and explores the ways in which concepts of risk, vulnerability and mutual-
ity affect body work relationships as they emerge within law.

A short history of labour law: employees, workers and ‘employment’

Modern labour law emerged from a range of relationships associated with 
work in the nineteenth century (Deakin, 2007; Deakin and Wilkinson, 



62    Ann Stewart

2005). At its heart is the common law contract of employment. Two 
autonomous parties, the employer and the employee, enter into a free and 
voluntary agreement whereby the employer owes a duty to pay for work 
undertaken whereas the employee owes a duty to be ready, willing to work, 
and to obey the lawful orders of the employer. Although constructed as a 
mutual agreement, Pateman (1988: 118) argues that the contract in general 
is a specifically modern means of creating relationships of subordination. 
Clearly, the employment contract reflects inequality of bargaining power 
in the market place, placing the worker in a position of subordination. This 
contract of service involves not only elements of mutuality and depend-
ence, but also of continuity. Nonetheless, it replaced archaic legal distinc-
tions between blue collar and white collar workers (Deakin, 2007) and by 
the 1950s provided the basis for the ‘standard employment relationship’ 
involving ‘an ensemble of institutions, along with the vertically integrated 
enterprise, the industrial union, the male-breadwinner family, and the state 
as employer and provider of services, which served as the basis of an his-
torical compromise between workers, employers, and governments’ (Fudge, 
2007: 2).

This Fordist employment relationship has three objectives: ‘(1) to protect 
employees against economic and social risks, (2) to reduce social inequal-
ity, and (3) to increase economic efficiency’. It provided ‘stable, socially pro-
tected, dependent, full time jobs’ for male breadwinners (Fudge, 2007: 2). In 
the UK, conditions were regulated primarily through a system of ‘collective 
laissez faire’ backed by strictly limited legal interventions that extended pro-
tections for employees (Kahn-Freund, 1972).

While labour law provides the dominant frame of reference for the regu-
lation of relationships for those involved in paid work, it is generally rec-
ognized to be struggling conceptually to cope with the changes that have 
occurred in the global economy since the 1970s. There are a wide range of 
problems. One such is territoriality. State laws based upon local traditions of 
industrial relations are not best placed to deal with the way in which multi-
national enterprises organize their relations of production on a global scale 
or with flows of migrant workers. Here, however, we are concerned with two 
other challenges. The first comes from feminist labour lawyers who question 
the way in which the boundaries between production and social reproduc-
tion are set and the consequential gendered impact on access to the labour 
market. Since the 1970s, they have been pointing out that this employment 
model largely ignores the ways in which women engage with the market 
and offers little protection to women who work in ‘non-standard’ ways. As 
more women joined the labour force, women’s organizations in the UK cam-
paigned for legal rights to ensure women’s equality at work, resulting in the 
legislation which tackled access to and segregation within the labour market 



Legal Constructions of Body Work    63

and equality of pay. A framework developed to cover pregnancy and mater-
nity discrimination and benefits and prohibitions on sexual harassment. 
Some of these measures have had their origins within the European legal 
framework. There is an uneasy conceptual relationship between measures 
introduced to tackle discrimination and those incorporated within employ-
ment protection, leading to some highly complex legal issues relating to 
the precise scope of protection, which continues unabated (Freedland and 
Kountouris, 2012; McCrudden, 2012).

While a legal framework to provide women with substantive equality was 
developing in the UK, the labour market was restructuring. By the 1980s, 
new forms of flexibility were required to tackle decreasing productivity and 
to reposition the economy within the global market. Public services were 
privatized. Generally, employment relations were commercialized through 
the introduction of precarious forms of working, which attracted little or 
none of the protections offered to those categorized as employees under the 
Fordist model (Conaghan et al., 2002; Fredman, 2006). The male family 
wage disintegrated, requiring women to work to maintain household living 
standards.

The second problem, therefore, for labour law results from its basis within 
a Fordist model of commodity production in economies now organized 
around the provision of services (Albin, 2010). The commercialization of 
employment relations associated with the rise of a service economy, through 
self-employment, subcontracting and franchising, fit uneasily, if at all, into 
a conceptual framework based upon the contract of employment, a bilat-
eral contract of service between an employer and an employee. A service 
economy draws together production and consumption in such ways that the 
processes of consumption affect those of production. It is a world of tripar-
tite relationships between employers, workers and customers/clients organ-
ized through contracts for services.

What can seem like esoteric debates, relating to the distinctions between 
a contract of service and a contract for services, matter greatly to those 
involved. Organized labour has fought to limit the exploitation of employ-
ees, those with contracts of employment, backed by state legislative protec-
tions. Entrepreneurs, freely selling services in a market place, are located 
within a different understanding of power relationships and legal frame-
works relating to contract, commercial and consumer law. Clear, if fine, 
conceptual distinctions between employees, workers and those trading serv-
ices, disappear in the messy world of working relationships but still result in 
many workers having far fewer protections.

Women’s work is concentrated in the service sector, which is associated 
with the sort of flexible working that is underpinned by commercialized 
relationships wherein services are freely traded. However, they tend not to 



64    Ann Stewart

be in the vanguard – the free floating knowledge workers, the independ-
ent risk takers who, it is argued, can subvert traditional relations of power 
through the skilful deployment of their human capital (Albin, 2010). 
Instead, the majority work in traditional service sectors – still closely associ-
ated with socially reproductive activities which can at the extremes hark 
back to pre-modern forms of relationships and where work is low skilled, 
commands poor wages, is provided informally and is associated with very 
different relations of power and risk allocation.

Since the 1980s, there have been attempts to recapture territory for labour 
law. In the 1990s, the Labour government utilized the language adopted 
within European law to provide employment-related protections based upon 
the concept of a worker rather than an employee (Ashiagbor, 2006). This 
category extended the scope of measures such as the minimum wage and 
working time limits to those who did not qualify as employees because they 
were not operating under a contract of employment or because they lacked 
the continuity necessary to qualify for protective measures. The European 
framework more generally has had significant effects through the extension 
of its reach in relation to anti-discrimination measures.

Additionally, the discourse of human rights with its origins in interna-
tional and regional rights frameworks such as the European Convention on 
Human Rights has become more significant. Labour law norms as previously 
discussed recognize inequalities in power and the need to protect workers 
from economic and social risks. The normative base for anti-discrimination 
and human rights roots inequality within status categories (sex and disabil-
ity, for example). While human rights discourse increasingly informs labour 
law there is an uneasy relationship.

There is a widely held view among labour lawyers that there is a need for 
the construction of a new employment normative base, which does more 
than resolve the complexities that have developed around definitions of 
employees, workers and the somewhat different employment definition used 
in relation to some anti- discrimination measures (Albin, 2010; Davis, 2007; 
Freedland, 2006; Fudge, 2006). The aim would be to breathe new life into its 
distinctive contribution, ‘which is to strengthen the bonds of social solidar-
ity against the fragmentation of the market’ (Fudge, 2007: 18) and to reassert 
the progressive norms associated with this form of regulation (Freedland, 
2003, 2006).

Body work in a service world: commercial sex services, 
exploitative relationships and dangerous consumers

The weakening of the ideological assumption that sexual relationships are 
more appropriately undertaken outside the market place in a consumer-based 



Legal Constructions of Body Work    65

society has led to the ‘normalization’ of market satisfaction of sexual desire 
and the proliferation of services (Hardy et al., 2010). Market provision is 
however normatively contested, and this is reflected in the legal construction 
of prostitution and trafficking (O’Connell Davidson and Anderson, 2006). 
The focus here is on the provision of intimate sexual services, whether on or 
off street, fully recognizing that there can be a range of contexts in which 
these services take place reflecting different power relationships.

We can frame this labour process within labour law terms of refer-
ence. If the woman works for an employer for wages in an establishment, 
we would look for a contract of employment upon which to base employ-
ment protection rights. She may pay a fee, or other form of consideration, to 
use premises; she may provide her services via an agency and use her own 
premises. We would need to know how she works, part-time for how many 
hours, on a casual basis and so on to assess her employment status and the 
extent to which she is entitled to employment rights or discrimination pro-
tection. Is she working under a contract of service or a contract for services? 
Is she employed or self-employed?

She is providing an intimate service in which the customer plays a key 
role. The customer may share employing functions, but more generally it 
is clear that customers affect her employment conditions and her position 
at work. The demands of customers are likely to influence both ‘hiring and 
firing’. Meeting the demands and expectations of the ‘fantasizing consumer’ 
for particular body images and identities is paramount in this consumer-
based industry. Customers need to be ‘enchanted’ rather than concern 
themselves with the ‘toiling worker’ (McDowell et al., 2007).

Therefore, within this discourse we could illustrate the challenges pre-
sented by this service work and reflect on similarities to the way in which 
customers influence labour relations within the wider hospitality industry. 
Are tips to be seen as contributing towards the minimum wage? To what 
extent must employers take responsibility for sexual or other forms of har-
assment by ‘third parties’ (customers)? Can employers impose dress (broadly 
defined) codes? We would also need to consider the impact of personal rela-
tionships within consumer service provision. Many such services are pro-
vided through informal, personal relationships wherein it is difficult to 
establish a legal basis for worker protection. Working in informal settings, 
close to employers in a domestic or small establishment, may raise particu-
lar issues such as ‘on call’ time. This issue arises often when a presence is 
needed at night, for instance in a hospital, or for residential or domiciliary-
based care. Is the worker entitled to be paid for such time? Realizing any 
protection is also very difficult. Workers tend to ‘exit’ rather than use ‘voice’ 
processes (Albin, 2010). Such settings are not conducive to unionization, 
which makes challenging decisions in appropriate fora even more unlikely.



66    Ann Stewart

These issues can be used to support the need to reconfigure labour law to 
ensure that it functions appropriately in a service-based consumer economy, 
not only to support economic objectives but also to recognize power rela-
tionships and to offer protections to workers.

This, of course, is not the way in which commercial sex services are dis-
cussed. Instead, they are placed beyond the margins of labour law. We see 
the aims of protecting employees and ensuring economic efficiency trans-
posed into the criminal law and to a lesser extent, human rights discourse. 
These discourses construct the relationships in terms of dominance. The 
economic objective is to suppress, not facilitate the market while customers 
are recognized as contributing substantially to power relationships. In the 
trafficked body, we see recognition of the way in which particular bodies 
are constructed within law through their work.

Although ‘prostitution’ in practice can involve a contract for services, it is 
not legally recognized for reasons of public policy. No employment relation-
ship is recognized in the criminal provisions which regulates relationships1. 
The employer is recast as someone causing or inciting for gain or controlling 
activities for gain. Providing a place of work is criminalized as the provision 
of a brothel. The person seeking to sell her services is impeded by crimes 
against soliciting and advertising. The international aspects of trading are 
tackled through anti-trafficking measures that criminalize the processes 
involved.

The normative justification for this criminalization has shifted over time, 
from protecting against immorality, then prohibiting public nuisance, to, in 
recent times, an explicit attempt to disrupt and suppress the market because 
of the unacceptable levels of exploitation involved, which in the case of traf-
ficking are seen as clear violations of fundamental human rights to liberty. 
There has been a policy shift from constructing the service provider as a 
dangerous woman to seeing her as vulnerable, as a victim of exploitation 
who needs protection of her right not be bodily violated and exploited. We 
have transposed the danger on to the customer, along with those who are 
cast in the ‘employer’ role such as traffickers.

The key provision which illustrates many of these issues is Section 53A of 
Sexual Offences Act 2003.

Paying for sexual services of a prostitute subjected to force etc

(1) A person (A) commits an offence if
(a)  A makes or promises payment for the sexual services of a prostitute 

(B),
(b)  a third person (C) has engaged in exploitative conduct of a kind likely 

to induce or encourage B to provide the sexual services for which A 
has made or promised payment, and



Legal Constructions of Body Work    67

(c)  C engaged in that conduct for or in the expectation of gain for C or 
another person (apart from A or B).

(2) The following are irrelevant
(a)  . . . .
(b)  whether A is, or ought to be, aware that C has engaged in exploitative 

conduct.

(3) C engages in exploitative conduct if
(a)  C uses force, threats (whether or not relating to violence) or any other 

form of coercion, or
(b)  C practices any form of deception.

We see here that tripartite relationships are recognized. The consumer and 
his power is placed centre stage. In an attempt to suppress demand, to reas-
sert not just recognition of the toiling worker but the exploited victim, the 
fantasizing consumer is denied the legitimacy of agency. His desires are 
recast as an obligation to recognize the particular identity of the service 
provider – not stunning Albanian beauty, but raped and abused victim, 
made vulnerable by her economic location within the global economy. The 
potential abuse of the worker by the client and the assumed abuse by the 
‘employer’ figure are emphasized. The interdependence of the parties is 
clearly recognized but wholly outside labour law.

Body work in a service world: caring

The exclusion from labour or commercial contract law in the previous 
example results from an explicit policy decision not to recognize the rela-
tionships. The present one concerns difficulties with fitting ‘legitimate’ 
relationships within the framework. Forms of ‘care’, particularly when pro-
vided in informal, domestic, personalized contexts within a network of 
relationships, struggle to be recognized as a work relationship or worthy of 
protection. Much paid care work, particularly for the elderly, is associated 
with irregular hours, multiple job holding, agency provision and bogus self-
employment – factors which mitigate against protection within labour law. 
Unpaid caring by ‘carers’ is beyond such protection.

Labour law is not the only legal domain which organizes the relation-
ships involved and addresses issues of risk, vulnerability and exploitation. 
The work relationship involving family members is constituted within 
social welfare law. It grants the status of ‘carer’ and some rights, derived 
through this work relationship, although these do not provide labour law 
forms of protection. Some paid relationships, marginalized by labour law, 
are now being recognized in terms of rights. The power relationship can 



68    Ann Stewart

also attract a dominance discourse within criminal law similar to that of 
trafficking.

Exploitative relationships and dangerous employers

For the discourse of labour law, the margin is constituted through debates 
over domestic workers, which in this context include those providing paid 
care within informal familial settings. Feminist labour lawyers, joined now 
by human rights activists, have highlighted the position of such workers, 
who occupy a no woman’s land between legal regimes organized around 
concepts of production and those organized in relation to social reproduc-
tive activities. Domestic work is hard to regulate but ‘prone to precariousness 
for social (gender, race, migration and social class), psychological (intimacy 
and stigma) and also economic reasons’ (Albin and Mantouvalu, 2012: 69).

They point to the current UK position whereby domestic workers are often 
excluded from the protections provided to ‘workers’ such as over regulation 
of working time, health and safety legislation, partially (if provided with 
accommodation) or wholly (if treated as family members domestic workers) 
from minimum wage requirements. Such workers cannot access anti-discrim-
ination and equality provisions (Albin and Mantouvalu, 2012: 70–71).

Legal migrant domestic workers are even less likely be included in any 
protective labour law measures. Illegal status denies all employment pro-
tections. The plight of migrant domestic workers has surfaced within inter-
national labour and human discourse in recent times because of the sheer 
size of this group worldwide (Stewart, 2011). A discourse based upon viola-
tions of human rights, similar to that of women trafficked for the purposes 
of sexual exploitation, has emerged within various settings. One of which 
has made use of an underused article, Article 4, of the European Convention 
on Human Rights that prohibits slavery, servitude, forced and compulsory 
labour. It was invoked to expose the inadequacies within the French crim-
inal legislation to deal with the ‘servitude, forced and compulsory labour’ 
experienced by the applicant. This ruling against the French state recognized 
‘modern slavery’ and prompted the UK to adopt new legislation (section 71 
of the Coroners and Justice Act 2009; Mantouvalou, 2006, 2010).

Slavery, servitude and forced or compulsory labour

(1) A person (D) commits an offence if
(a)  D holds another person in slavery or servitude and the circumstances 

are such that D knows or ought to know that the person is so held, or
(b)  D requires another person to perform forced or compulsory labour 

and the circumstances are such that D knows or ought to know that 
the person is being required to perform such labour



Legal Constructions of Body Work    69

The position of domestic workers has also been recognized by the 
International Labour Organisation. The Convention on the Rights of 
Domestic Workers 2011 is seen as a ‘landmark moment for the interna-
tional labour law regime’ because it addresses a specific sector of activity 
now clearly identified as work and incorporates a human rights approach 
into international labour law discourse (Albin and Mantouvalou, 2012: 67). 
Its provisions cover both ‘civil rights, like access to justice and privacy, and 
social and labour rights, like working time and minimum wage’ (Albin and 
Mantouvalou, 2012: 73). The UK government abstained in the voting on its 
adoption. Albin and Mantouvalou (2012: 77) quote the views of the UK rep-
resentative: ‘we do not consider it appropriate, or practical, to extend crimi-
nal health and safety legislation, including inspections, to cover private 
households employing domestic workers. It would be difficult, for instance, 
to hold elderly individuals, who employ carers, to the same standards as 
large companies’.

This quotation is illuminating: first because employed ‘carers’ are iden-
tified as falling within this category of worker and second because elderly 
clients are, by implication, seen to be particular types of employer. The 
suggestion here would seem to be that such a caring relationship involves 
competing vulnerabilities and uncertain distributions of power between the 
employer/client and the worker.

To understand more, we need to consider the nature of caring relation-
ships within this ‘non-standard’ or marginal work context and the way in 
which the discourse from another area of law, associated with the fixing of 
social responsibility for care, constructs such relationships and addresses the 
associated risks.

Exploitative relationships and ‘empowered’ 
clients/consumers

Social welfare law delineates the responsibilities of the state for the welfare 
of vulnerable adults. The focus of legal attention here is the person in need 
of care who is situated within a network of relationships (Ungerson, 2000). 
This individual is being repositioned within a social market as an inde-
pendent consumer of care services, as someone who chooses what they want 
rather than being the recipient of state-defined provision. As a consumer/
client, they gain power, in theory, but given the nature of state responsibil-
ity for such care only the most intensely vulnerable are presently eligible 
for publicly funded services. In relation to whom does such a vulnerable 
consumer gain power? Their unpaid relatives, who within social welfare law 
are defined as ‘carers’? The paid workers from whom they purchase services 
directly or indirectly?



70    Ann Stewart

Evolution of social/community care law and policy

Social responsibility for the care of the vulnerable, including the elderly, 
involves a range of actors, the state, market, voluntary sector and families, 
the relationship between which has changed substantially since its origins 
in the Poor Law 1834 (Lyon and Glucksmann, 2008: 111). The post-war 
welfare state excluded the provision of social care, viewed as residual, from 
the National Health Service. Local authorities were sanctioned under the 
National Assistance Act of 1948 to provide and to charge for specific serv-
ices to those with identified forms of need. Such public assistance as was 
available to the elderly in general was institutionalized through provision of 
‘old people’s homes’, although those identified as having a particular need 
could be provided with a ‘home help’ who was directly employed by the 
local authority.

The restructuring of economic relations, which took place in the 1980s, 
resulted in a changed relationship between the state and the market. This 
involved the creation of a mixed market in welfare through splitting pur-
chase and provision functions through compulsory competitive tender-
ing for services. The result was privatization of services. By the end of the 
decade, social services departments had been recast as commissioners 
of state-financed, privately delivered services. Private residential homes 
developed rapidly, many of which were small, often family run businesses, 
dependent on publicly funded residents (Brown, 2010; Means et al., 2008).

More generally, there was a move in a service-based economy towards 
greater client choice through ‘personalization’ of services. Residential provi-
sion became not only prohibitively expensive for the state, but also seen as 
inappropriate. An increasingly effective disability rights movement lobbied 
for replacement of the dependency model to one based upon user empow-
erment and rights. Local authorities began to commission community 
care, particularly domiciliary-based services, which stimulated a market in 
agencies to provide these. This mixed market is now constituted by a large 
number of small businesses and voluntary organizations providing care 
homes, domiciliary services, and a small number of large providers. The 
sector remains under-capitalized, with small profit margins and high risk, 
deeply dependent on public funds (Stewart, 2012).

Employment relations within the social service provision have been 
reconfigured. State employed social workers operate as care brokers, buying 
packages of care (Ungerson, 2000). Social care workers (including personal 
assistants) undertaking body work are now located primarily within the 
private sector (70 per cent). This workforce is low skilled, low paid, predomi-
nately female (90 per cent), two-thirds of whom provide care for the elderly 
(Lyon and Glucksmann, 2008: 112). The commercialization of relations 



Legal Constructions of Body Work    71

has resulted in the predominance of ‘non-standard’ and precarious work 
arrangements. As we have seen, such workers attract few employment pro-
tection rights, enabling the economic risks associated with restructuring to 
be passed on to them.

There is another group of workers, invisible to labour law, who under-
take ‘social’ care. Family law in the UK places no legal responsibility on 
adult children to support parents or other relatives. Nonetheless, the 1948 
welfare system was predicated upon the assumption that such informal care 
would be provided within the dominant societal model of the male bread-
winner/female homemaker model. Although this model has been super-
seded, the assumptions relating to the provision of informal care have not. 
Approximately six million people, now termed ‘carers’, undertake such work 
in the UK. It is estimated that if valued their yearly cost would be roughly 
equivalent to that of the NHS; without it the public systems would collapse 
(Buckner and Yeandle, 2007). The manifest tensions between paid work and 
care responsibilities coupled with the financial and social consequences of 
demographic changes, which see a significant rise in the proportion of very 
elderly people in the next decades, has spawned anxious debates over a crisis 
in care (Stewart, 2012).

The present legal and financial systems are generally recognized by policy 
makers as wholly unfit for purpose (Stewart, 2012). The Law Commission in 
2011 made recommendations for a comprehensive new legal framework that 
forms the basis for forthcoming legislation. It places the individual client 
at the normative core of its proposals. While local authorities retain the 
responsibility for assessing individual needs within a framework which sets 
the eligibility criteria for the provision of services, the overall objective is 
to enable clients (or advocates on their behalf) to choose the services they 
want to ensure their well-being. There will be further development of the 
direct payments/individual budgets framework that enables the individual 
client to use public funds to buy services, leading to further commerciali-
zation in service provision. The Dilnot Commission, which also reported 
in 2011, tackled the highly contentious area of how to fund social care. 
Responsibility for funding a significant, but defined proportion of life-time 
caring costs is placed firmly on the individual.

Social welfare law also recognizes that there is a relationship between this 
newly constituted client/customer and unpaid familial carers. We have seen 
the emergence of a new legal identity, the carer who is defined in legislation 
through this relationship. However, they are now attracting separated rights 
that recognize that this form of work affects them as quasi workers. Carers 
are entitled to be assessed for services based upon their separate needs such 
as for time off (to purchase respite care) and as individuals experiencing 
exclusion from full citizenship primarily derived through their inability 



72    Ann Stewart

to undertake paid work or to participate in social life. Many carers, both 
working age and older, are impoverished because they cannot undertake 
any or enough paid work and/or because they are reliant on inadequate state 
welfare payments which are primarily derived through their relationship 
with the care recipient (Yeadle et al., 2007a, b, and c).

Because of their socially reproductive location, carers lack the indices 
for legal recognition of their body work as employment for the reasons dis-
cussed earlier. If a carer has a separate paid occupation that constitutes them 
as an employee they will attract similar rights to those offered to parents to 
‘balance’ work and family (Employment Relations Act 1996). As workers who 
also care, they may also be able to rely on the anti-discrimination measures 
contained within the Equality Act 2010, which recognizes discrimination 
by association with someone with a protected characteristic (in this case dis-
ability; Stewart, Hoskins, and Nicolai, 2011).

 Recognizing power relationships in body work

The elderly care recipient as customer/client in an era of consumerism is 
being provided with services through a range of legally constructed relation-
ships. They may be provided with state funds to purchase (in theory) the 
care services they would like. The care recipient may employ a social carer 
or domestic worker. If supplied through an agency, there will be a contract 
for services with the agency but no direct employment relationship with 
the worker. If employed directly, there may be a contract of employment or 
the worker may be self-employed. A care recipient cannot use state-provided 
funds (direct payments) to pay relatives who live with them. They may be 
able to employ other family members in which case these family members 
may become their employees. Unpaid carers although attracting some cit-
izen-based rights are not protected through an employment relationship 
despite often being the linchpin to the web of relationships necessary to 
meet the customer/client needs.

Who needs protection here and from what? The empowered client may 
be very frail and vulnerable, wholly dependent on the abilities of an agency 
to deliver agreed, but often meagre, services and the worker/employee to 
provide appropriate care. An agency worker is often under immense pres-
sure to carry out the agreed service. They may work in difficult physical 
and social environments that require them to meet consumer desired, but 
agency prescribed, demands. They may face ‘third party’ harassment. Those 
working within bilateral arrangements, including migrant domestic workers, 
face similar consumer expectations without the protections potentially 
offered through their relationship with an agency. Determining and limit-
ing working hours can be difficult.



Legal Constructions of Body Work    73

Family carers are under no formal obligation to provide care, but in prac-
tice they can work very long hours, sometimes with continuous ‘on call’ 
time. More than 21 per cent of carers provide over fifty hours or more care 
per week (Lyon and Glucksmann, 2008: 111). They can experience harass-
ment. At the same time, there is a rising expectation of what is involved in 
decent care, encouraging carers as well as care workers to acquire care skills 
(Dodds, 2007).

There is also growing anxiety over abuse of the elderly and vulnerable. 
The legal language used to address this issue varies but it is increasingly 
framed as a violation of human rights. As such, it places responsibilities 
upon the state to ensure that such abuses do not take place. It is however 
seen as perpetrated by both care workers and carers. Those within the 
sphere of labour law and, therefore, within the public realm are affected by 
the framework for the public regulation of care standards. Care workers are 
constructed as potentially dangerous workers requiring screening to alert 
employers/clients to this danger. Dangerous (private) carers are viewed dif-
ferently (Galpin, 2010; Herring, 2009). Their abuse is absorbed into two 
possible policy frameworks, one analogous to child abuse, involving the 
language of safeguarding, the other seeing elder abuse as a continuation of 
domestic violence.

 Conclusion

These two examples consider body work on the margins of recognition 
within labour law. In both instances the consumer/client is increasingly 
incorporated into the work–like relationships. In both cases, we see the 
exploitation and abuse which result from inequalities of power in working 
relationships being tackled through ‘non-traditional’ legal frameworks.

Both examples in different ways engage other areas of law to tackle issues 
of vulnerability, exploitation and abuse using different languages. The first 
locates the activity outside the realms of labour law, thereby denying its pro-
tection to those involved as workers. However, the form of regulation used, a 
combination of criminal and human rights discourses involving two differ-
ent forms of state power, recognizes the impact of a global consumer/service 
economy on power relations associated with work. The law is being used not 
to facilitate economic relations while protecting workers against market risk, 
but rather it is being used to disrupt the market by criminalizing the client. 
The vulnerability of the worker constituted as a prostitute/trafficked person 
is protected through client-based interventions.

The caring example involves relationships on the margins of labour law. 
Many categories of workers in the informal context of home find them-
selves outside the protection of labour law. Those who employ ‘modern 



74    Ann Stewart

slaves’ attract criminal penalties. At the same time, the international labour 
discourse is seeking to provide domestic workers with human and labour 
rights. Social welfare law is providing unpaid carers, who are wholly outside 
the discourse of labour law, with some form of rights that nevertheless rec-
ognize the impact of their work on their lives, including the risks to their 
health and well-being. These rights do not offer labour law type protec-
tions. Yet developments within the social market in care are reconstituting 
caring through love (and obligation). The reconstruction of the care recipi-
ent as a consumer/client who assembles care services limits recognition of 
the complex power relationships involved in these intense body work con-
texts, which characterize their relations with both unpaid carers and paid 
workers.

Labour law as presently constituted cannot tackle relationships consti-
tuted on the borders of production and social reproduction, and also strug-
gles to recognize the influence of consumer/clients on work relationships. 
Resort to criminal sanctions and to the individualistic language of human 
rights to protect vulnerability in working relationships is not necessarily a 
positive development. The first creates a particular form of worker vulner-
ability while invoking direct state power, whereas the second denies the 
relational nature of power relationships within work contexts and recon-
structs these as conflicting rights. The solidarity that underlies labour law 
protections is lost. We need to find a way of reconstructing labour law in 
a way which retains its understanding of work based relationships and its 
recognition of power differentials. It will need to encompass the range of 
relationships that now constitute work in a consumer society and recognize 
the role and influence of consumers (Albin, 2010). It is clear from the two 
examples discussed here that body work offers particular challenges to such 
a reconstruction.

 Note

1 See Crown Prosecution Service guidance for more details: http://www.cps
.gov.uk/legal/p_to_r/prostitution_and_exploitation_of_prostitution/#a14.

Albin, E. (2010). Labour Law in a Service World. Modern Law Review 73(6): 
959–84.

Albin, E. and Mantouvalu, V. (2012). The ILO Convention on Domestic 
Workers: From the Shadows to the Light. Industrial Law Journal 41(1): 
67–78. ▲

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