Wage Theft as a Legal Concept

Abstract

This chapter analyses the fraud offence from the perspective of ‘wage theft’. The social concept of a ‘wage theft’ encompasses a wide range of dishonest or ‘sharp’ practices: false labelling of individuals as ‘self-employed’ and hence outside the scope of the National Minimum Wage framework, failure to pay holiday pay, unlawful deductions, and an absence of transparency in relation to wage entitlements. It is linked to wider public concerns about the effective enforcement of the statutory minimum wage regime. The chapter then examines whether the social concept of ‘wage theft’ maps onto the legal definition of ‘theft’ in section 1 of the Theft Act 1968. It argues the legal label of theft is ill-suited to the constellation of practices associated with the social label of ‘wage theft’. This is because of the disjunction between the proprietary status of ‘wages’ and the offence elements of theft in English law. In short, unpaid wages will often not count as ‘property belonging to another’ at the time of the dishonest appropriation by the employer, hence there is a difficulty with identifying a complete and coincident mens rea and actus reus.