Labour Law, Employees’ Capability for Voice, and Wellbeing: A Framework for Evaluation

ABSTRACT

Labour power has significantly declined across affluent democracies in recent decades, resulting in a widening scale of power inequality within the contemporary employment relationship. Employee voice is a key component of labour power that represents a human capability according to Amartya Sen’s conceptualisation: a real freedom to achieve states of being that one has reason to value. Employees deficient in the capability for voice lack sufficient bargaining power to influence workplace decision-making, which threatens their wellbeing by increasing their risk of exposure to work-related stressors and limiting their opportunities to improve their welfare. In this article, employee voice legislation is argued to be a necessary social conversion factor of employees’ capability for voice that can promote further advantage. However, research assessing its effectiveness at enhancing wellbeing is greatly limited due to an over reliance on neoliberal and new institutional forms of economic analysis that reveal little about the quality of employees’ lives. A comprehensive framework for evaluation based on Sen’s capability approach is proposed that when operationalised for empirical analysis, can advance our understanding of employee wellbeing in the twenty-first century.

KEYWORDS:

• Capability Approach
• employee voice
• employee wellbeing
• policy evaluation
• labour power
• labour law

Introduction

Employment has become uncertain, insecure, and unstable for a growing portion of people across affluent democracies (Kalleberg 2018). Globalisation, international competition, and technological advancement have pressured governments to favour economic efficiency through market deregulation at the potential detriment of employee wellbeing. Labour power has significantly declined over the past four decades, resulting in an unfair distribution of returns from production that has contributed to a widening scale of economic, social, and health inequality (Ahlquist 2017; Case and Deaton 2021; Deakin 2021; Radcliff 2013; Stansbury and Summers 2020). Laissez-faire labour economists assume that “when the market fails to achieve an optimal state, society will recognise the gap to some extent, and nonmarket social institutions will arise attempting to bridge it” (Przeworski 1991, 109). However, without sufficient labour power, social institutions cannot be built to counterbalance capital’s rising power advantage (Bavel 2022; Radcliff 2013); employees require substantial capabilities to bargain for better working conditions to improve their wellbeing.

Employment should be a centre for capability promotion in people’s lives but increasingly occupies a space of capability deprivation (Miles 2014). The International Labour Organisation (2013) argues that we cannot rely on free markets to resolve this issue; we need government intervention to facilitate quality jobs that yield equitable returns to employees. Economist and philosopher Amartya Sen (1985) declares that such interventions should aim to improve peoples’ welfare through the expansion of their capabilities. A key component of labour power is employees’ capability for voice: the ways and means through which employees attempt to have a say, formally or informally, collectively, or individually, to influence organisational decision-making over issues that affect their work and personal life (Wilkinson et al. 2020). Employers and employees must negotiate the terms of their work through legally binding contracts, workplace policies, and informal expectations and understandings. The employment relationship in free market economies can be characterised by an inequality of bargaining power that favours capital due to their ownership over production (Kaufman 2004). Employees deficient in voice lack sufficient bargaining power to influence negotiations, which threatens their wellbeing by increasing their risk of exposure to workplace stressors and limiting their opportunities to improve their welfare. In this way, voice represents an especially valuable capability for employees to possess that can substantially improve their quality of life.

Recent research points to a widening voice gap for many employees engaged in all types of jobs spanning various industries whose wellbeing is in jeopardy (Gomez, Bryson, and Willman 2010; Kochan et al. 2019; Stanford and Poon 2021). If employees’ capability for voice is vital for labour power, job quality, and consequently, wellbeing at both an individual and societal level, then an essential question arises: how can we better understand how it is promoted and inhibited in the contemporary employment relationship? Labour law and industrial relations scholars widely agree that employee voice legislation is necessary, although not sufficient, for the conversion of employees’ capability for voice to protect their interests by counterbalancing capital power. Yet, research evaluating its effectiveness from a wellbeing standpoint is limited due to an overreliance on neoclassical and new institutional forms of economic analysis (Deakin 2019). This article presents the capability approach as a useful framework for conceptualising employee voice that when operationalised to evaluate employee voice legislation, can facilitate new insights into the determinants of employee wellbeing in the twenty-first century.

The first section of this article provides justification for using the capability approach to conceptualise employee voice for labour law evaluation. The second section describes key features of employee voice based on decades of research stemming from different disciplines to reveal how, by its very nature, constitutes a capability that expands employees’ opportunities to achieve valuable “functionings.” The third section discusses the critical role of “conversion factors,” specifically labour legislation that aims to promote employee voice in the workplace to counterbalance employer power. The final section describes achieved employee wellbeing in terms of “functionings’ and lays the foundation for operationalising the framework for empirical evaluation.

Why the Capability Approach?

The capability approach asks what are people able to do, be, and achieve? “It is an intellectual discipline that gives a central role to the evaluation of a person’s achievements and freedoms in terms of his or her actual ability to do and be the different things that they have reason to value” (Sen 2009, 16) Employee wellbeing is often measured through income or productivity, and subsequently, employee voice as a way to achieve those objectives. Sen has shown in numerous studies that focusing on these types of metrics, especially at a macro-level, provides limited information about the quality of people's lives (Drèze and Sen 2013; Sen 1985; Stiglitz, Sen, and Fitoussi 2010). Employees derive much more form work than income, but community, meaning, and purpose (Budd 2011; 2019), yet labour law evaluations continue to rely on measures that fail to capture employment as a fully human activity. In contrast, the capability approach facilitates a more complete conceptual space for wellbeing evaluation by shifting our attention to objectives that employees value (Robeyns 2017, 10).

The “capability for voice” was introduced by Jean-Michel Bonvin (2012) as a critical dimension of one’s “capability to work.” The author discusses this concept in the context of the labour market but acknowledges its applicability to the workplace. He identifies legislative provisions as substantial mechanisms impacting the degree of capability for voice that employees enjoy and argues that the capability approach is the most appropriate tool for assessing the impact of these mechanisms on employees’ lives. Roger Fernandez-Urbano and Michael Orton (2021) employ Bonvin’s framework by empirically evaluating the impact of an active labour market policy (ALMP) in Denmark according to its ability to promote job seekers’ capability for voice and choice rather than employment status, the most common measure of ALMP success. Their results revealed an absence of such capabilities among participants which negatively impacted their job search process despite many of them finding employment. These findings raise questions about the quality of employment gained in relation to workers’ preferences and wellbeing, thereby challenging the policy’s utility and demonstrating how the capability approach adds value.

Employee voice is presented as a critical capability for vocational training and development, an important dimension of job quality, within research that applies the capability approach to working conditions. Empirical research reveals that access to training opportunities is not enough to meaningfully expand employees’ capabilities, rather, employees with a say over what training programs they participate in are better off due to enhanced levels of agency and freedom in their professional lives (Barry et al. 2020; Bryson and Zimmermann 2020; Sigot and Vero 2020; Zimmermann 2020). Various individual and structural mechanisms are identified as employee voice promoting in training decision-making including labour law and human resource policy. This article will elaborate on these mechanisms while also drawing a clear distinction between them, but in a broader context that extends beyond training to encompass other dimensions of job quality that employees value.

In The Capability Approach to Labour Law, esteemed legal and capability scholars critically consider how the approach may benefit labour law (Langille 2019). Simon Deakin (2019) compares the explanatory power of the capability approach to neoclassical economics for understanding the labour market. His analysis suggests that the former can produce better measurements of institutional phenomena and human wellbeing because of its distinct ontological basis and methodological approach. Hugh Collins (2019) emphasises employee voice as an area of labour law that would benefit from a capability-based analysis. He claims that it can promise fresh insights as a conceptual tool for evaluation due to its strong conceptual fit. And Ricardo Del Punta (2019) suggests that the capability approach is likely more useful for anticipating the future course of labour law compared to other political theories. This article builds upon the intellectual contributions of these scholars by bridging a pivotal gap in the capability literature – it provides an in-depth conceptualisation of employee voice through the lens of the capability approach and builds a framework for labour law evaluation that is applicable to various features and forms of employment.

Employee Voice as a Capability

The meaning of employee voice and motivations for its study have evolved over time and across academic disciplines. The concept has been widely researched in the fields of industrial relations, human resource management, organisational behaviour, sociology, and political science with rationales encapsulating a host of outcomes such as financial security, citizenship, power, organisational performance, and industrial democracy (Wilkinson et al. 2020). Voice is “an elastic term meaning different things to different policy, academic, and practitioner actors” (Wilkinson et al. 2020, 3), who are mobilising the term in different ways to achieve different and sometimes contradictory goals (Dundon et al. 2004, 1151). In other words, how employee voice is conceived and operationalised depends on one’s positionality to or within the employment relationship. To managers, employee voice can be viewed as a way to improve employee engagement and business performance; to labour activists, a way to represent and serve workers’ interests; and to governments, a way to promote industrial democracy and civic participation. When thinking about employee wellbeing in terms of the capability approach, perhaps the most important and often neglected perspective to consider is that of the employee. From their vantage point, voice represents the ability to influence workplace decision-making to achieve some sort of desired outcome that they have reason to value. It provides a channel for them to express their opinions and preferences, protect themselves against employer exploitation, and advocate for positive change within the workplace and broader society (Stanford and Poon 2021).

In a multidisciplinary review of employee voice in organisational behaviour research, Morrison (2011) identified three core features of employee voice that are prevalent among all its conceptualisations: communication, constructive intent, and discretion. Communication is the act of expressing one’s ideas, suggestions, concerns, or opinions to someone else (usually a superior), either individually or collectively through some type of channel. For their message to be considered employee voice rather than ordinary information-sharing, it must have constructive intent, meaning it must aim to bring about a reasonable improvement or positive change in their working life. This distinction is important to highlight because today, employee voice is often presented as a business case to improve efficiency. This objective is important and can indirectly improve employee wellbeing either intrinsically through enhanced engagement or instrumentally through higher incomes if profits are equitably shared, but it is not the ultimate objective from the employee’s standpoint. The final feature, discretion, emphasises the freedom employee voice presents; it is exercised at an employee’s will when they wish to achieve a desired functioning. It serves a higher purpose that is inherently linked to one’s agency and choice at work and in life. Employees are not a commodity but human beings who derive several valuable functionings from employment that extend beyond financial subsistence such as identity, social capital, meaning, and health. Together, these three features demonstrate how employee voice constitutionally represents a human capability – “real freedoms and opportunities to achieve states of being that one has reason to value” (Robeyns 2017, 39).

Employee Voice as a Pathway to Wellbeing

Employees’ capability for voice plays a critical role in their wellbeing at work and in broader life. Robeyns (2017) describes capabilities as having both intrinsic value and instrumental value that can yield wellbeing freedom and achieved wellbeing. In this way, wellbeing is enhanced for employees who possess the capability for voice in two ways: (1) the opportunities or freedoms it presents to an employee who possesses it and (2) the functionings an employee realises when they choose to exercise it. When an employee has the capability for voice, they can shape their working conditions in a way that is more conducive to their needs by removing or reducing workplace stressors and by adding or enhancing workplace resources. For example, an employee with the capability for voice who struggles with their workload can negotiate ways to reduce this stress with their manager like extending deadlines, enhancing internal support, or outsourcing tasks. A 2021 systematic review of workplace interventions on multiple domains of wellbeing showed that employee voice promoting interventions had the most reliable positive impact on employee wellbeing (Fox et al. 2022). In contrast, employees with limited to no employee voice lack sufficient bargaining power to facilitate or prevent change, making them vulnerable to sustained and compounded stress. Research on employee silence, the absence of voice, shows a significant link to reductions in employees wellbeing (Sherf, Parke, and Isaakyan 2021). Figure 1 provides a visual representation of employee voice as a pathway to wellbeing. The examples of workplace stressors and resources provided in the figure have been validated through occupational epidemiological research (Goh, Pfeffer, and Zenios 2016; Fox et al. 2022; Lovejoy et al. 2021).

Figure 1. Visualisation of employee voice as a pathway to wellbeing.

Employee Voice as a “Fertile Advantage”

Employees vary in their exposure and response to workplace stressors at any point in time due to quickly evolving socio-economic-political conditions that are constantly reshaping the nature and content of work, resulting in fluctuating workplace stressors for different demographic groups (Shahidi et al. 2021). Alongside these trends are dramatic changes in labour supply. Today’s workforce consists of more women, minority groups, and employees approaching retirement. There is greater diversity in life-course trajectories and family composition, as well heightened competition for jobs due to the emergence of global labour markets, making it difficult for employers to anticipate, understand, and respond to the needs of employees (Chung 2022; Kelly and Moen 2020). Thus, an employee’s capability for voice represents an especially valuable capability to possess that provides them with the opportunity to advocate for their own needs. It can lead to the development of other capabilities and in turn, the achievement of valuable functionings like caring for loved ones, serving in a religious, patriotic, or humanitarian way, or forming positive social relations at work and in the community. A capability of this nature represents what Wolff and De-Shalit (2007) refer to as a “fertile advantage” because when possessed, can produce further advantage, but when absent can lead to further disadvantage. For example, a mother who can self-determine their work schedule has the capability to pick up their child from school if they wish in the absence of other constraints. In contrast, a mother whose work schedule is predetermined by their employer may not have this capability and therefore, must make alternate arrangements that may be financially or emotionally burdensome.

Unionised employees who have the advantage of collective representation typically enjoy higher wages, more comprehensive benefits, job security, and safer working conditions compared to nonunionised employees. Indeed, empirical evidence repeatedly demonstrates that they exhibit higher levels of happiness and health (Blanchflower and Bryson 2020; Radcliff 2013; Reeves 2021). Evidence also reveals the negative wellbeing implications of declining unionisation across high-income countries such as wide-spread income and job insecurity, lower subjective wellbeing, and challenges throughout critical life transitions including one’s entry into the labour market, family formation, and retirement (Kalleberg 2018). Individuals who fail to successfully make these transitions are often socially and politically isolated and deprived of opportunities for structure and meaning in their life. In extreme cases these conditions can lead to death stemming from serious illness like drug and alcohol addiction (Case and Deaton 2021).

3.3 Personal and Collective Capabilities for Voice

Employees’ capability for voice can take on different forms in practice. It can be a personal capability expressed through free speech or self-determination, or a collective capability expressed through consultation, codetermination, or collective bargaining (Befort and Budd 2009). An employee can only realise a collective capability for voice with the help of other employees and often, institutional mechanisms to facilitate its conversion like a works council or trade union (Robeyns 2017; Subramanian and Zimmermann 2020). Theoretically, employees should be better off when they possess multiple capabilities for voice since they complement one another and expand their opportunity set. Consider three employees who wish to request hybrid working arrangements, each for different reasons including productivity gains, cost savings, and carbon emission reductions. If they possess both individual and collective capabilities for voice, they can exert their influence in each form to increase their likelihood of gaining approval. Research suggests that employees benefit from having access to multiple voice channels since different concerns warrant different methods of communication (Brooks and Wilkinson 2021). For example, an employee dealing with sexual harassment in the workplace may prefer to exercise their personal voice privately, and in some cases anonymously, to protect their safety. In contrast, a group of employees who are negatively impacted by receiving late night work calls may consult their union representative and collectively bargaining for mandatory digital disconnection hours. Through a series of interviews with employees of French firms, researchers found that employees with both collective and individual voice in decision-making regarding vocational training, including training needs assessments and program selection, extracted more value from training opportunities compared to those with limited to no voice (Subramanian and Zimmermann 2020).

Employee voice is not about gaining complete authority to dictate the terms and conditions of employment, but rather, the ability to influence negotiations with the prospect that their proposals and demands will be met in good faith and ignite some degree of positive change that enhances their wellbeing. When employees’ exercise their voice and experience no improvement in their working conditions, it is a reliable indication that their voice is not strong enough to counterbalance employer power. In the absence of state protection for employee voice, employers are advantaged during negotiations for two main reasons: (1) they own the capital resources required for production (Radcliff 2013); and (2) the costs associated with an employee’s exit are almost always higher for the employee. As Collins (2019, 23) put it, “the material and psychological risks to individual employees involved in obtaining and holding on to a job are far more significant to their wellbeing than the risks of gaining or losing a particular employee will be to the average employer.” Since employees’ interests are not usually well served by competitive markets or corporate goodwill (Kaufman 2004; Kochan 2000), government intervention is often required to prevent economic coercion and support employees in their efforts to cultivate healthy working lives (Befort and Budd 2009; Budd 2019).

Employee Voice Legislation as a Conversion Factor

Employees’ capability for voice will vary across regions, industries, occupations, workplaces, and individuals depending on environmental, social, and personal factors that either facilitate or inhibit its promotion. Sen refers to these types of mechanisms as conversion factors because they determine how much capability one possesses and in turn, how much wellbeing one can achieve (Sen 1985). This core concept of the capability approach forces us to think beyond an employee’s resources and critically consider the circumstances in which they live and work more broadly. In this way, we can assess whether an employee is able to utilise their resources to acquire the capability for voice and achieve the functionings that they have reason to value (Robeyns 2017).

Evidence suggests that the optimal space for an intervention to succeed in converting employees’ capability for voice is through government legislation since an employer’s decision to do so is largely dependent on the net benefit it will yield to the firm (Willman, Bryson, and Gomez 2006). This finding infers that employer-adopted voice regimes like high-performance work systems or upward problem-solving groups will prioritise issues arising from expressions of voice that align with business objectives (promotive voice) over issues that conflict (remedial voice) (Pohler, Luchak, and Harmer 2020). Although this can marginally improve employee wellbeing by increasing their sense of workplace engagement and participation in business decision-making, it is likely insufficient for converting enough employee voice to resolve substantial wellbeing conflicts because it is employer controlled and profit motivated. Therefore, employee voice legislation helps fill a naturally occurring voice gap in the employment relationship by legitimising employee issues not exclusive to business performance that can translate into meaningful wellbeing gains.

The introduction of labour laws allowing for employees’ collective capabilities for voice in the late 19th to mid-twentieth century played a vital role in improving working conditions by increasing wages, benefits, and job security, as well as reducing work-related injury and disease (Kaufman 2020). The level of disruption that accompanied these changes indeed, harmed employers’ bottom line in the short term, but fostered long-term societal improvements thanks to healthier and more productive workers. Justifications for state interventions in the employment relationship are often grounded in this rationale, otherwise referred to as the pluralist industrial relations model which views employee voice legislation as a critical mechanism for protecting workers’ interests by counterbalancing employer power (Kaufman 2004; Kochan 2000). Although there is some disagreement among labour economists and legal scholars as to whether this feature of employment constitutes a true market failure, there is wide agreement that well-designed employee voice legislation does prevent employers from capitalising on market opportunities that can lead to employee exploitation.

Types of Employee Voice Legislation

The regulatory framework governing the employment relationship sets the stage for negotiations between employers and employees. In other words, the state plays a fundamental role in power distribution through its use of employee voice legislation (Radcliff 2013). Laws of this nature are referred to as social conversion factors in the capability literature since they are societal factors that influence one’s capabilities (Robeyns 2017). The degree of voice capability an employee possesses is largely dependent on the scope of laws governing its different expressions including free speech: the right to freely express opinions and views in the workplace; self-determination: the degree of autonomy, independence, and discretion an employee possesses in their job; consultation, codetermination and social dialogue: a range of information exchanges between management and employees; and countervailing collective voice: independent labour unions with sufficient power to balance corporate power (Befort and Budd 2009). These types of laws can support the conversion of employees’ capability for voice in three ways: (1) establish employees’ rights for direct employee voice such as the right to free speech or the right to request flexible working hours; (2) establish employees’ rights to engage in activities that facilitate employee voice such as the right to board membership or the right to unionisation; or (3) restrict employers from engaging in behaviour that impedes employee voice such as good-cause dismissal and mandatory disclosure of employment terms (Table 1 provides an extended list of examples of employee voice legislation). An employee with robust state support for multiple expressions of employee voice should be better off than one with weak support due to their enhanced capability for voice.

Table 1. Employee voice legislation matrix.

Individual (Direct) Employee Voice	Collective (Indirect) Employee Voice
Employee Free Speech	Consultation, Codetermination & Social Dialogue
Protection of free speech and expression in the workplace Protection of whistleblowing Protections against discrimination, harassment, and abusive treatment Protection of concerted activity (ex. social media)	Mandatory health and safety committees Right to board membership Right to be informed/consulted Right to work councils Right to form an independent association
Self-Determination	Countervailing Collective Voice
Right to request Right to disconnect Mandatory disclosure of employment terms Good-cause dismissal Limits to overtime working Restrictions on monitoring and surveillance	Right to association market and government sector Right to unionisation Right to collective bargaining Right to industrial action (ex. strike) Right to unofficial industrial action Right to secondary industrial action Card-check certification process (i.e. instead of secret ballots) First contract mediation or arbitration (i.e. to protect against employer stalls) Duty to bargain Lockouts Penalties for ER violations Restrictions for permanent strike replacement workers

Resources

Resources play an instrumental role in the capability approach that partially determine the emergence, size, and robustness of one’s capabilities (Robeyns 2017, 146). There are several resources that can be utilised for the conversion of employees’ capability for voice under employee voice legislation. At the bare minimum, an individual requires a job to benefit from such laws. Other resources such as wealth, human capital, and social capital are advantageous but not always necessary; it depends on which employee voice law is being converted as well as the personal and professional circumstances of the employee. For example, successful union organising is often a resource intensive process that demands strategic campaigns, private information sessions, and strong social networks to gain majority votes for certification. This is especially true in fragmented or “fissured” industries where employees who occupy insecure jobs fear retribution from engaging in organising activities (Weil 2014). Indeed, there are countless cases of employers unlawfully terminating employees who attempt to organise throughout history. In this regard, a stable and secure job can be viewed as a resource for the “right to unionisation” to translate into employees’ capability for voice, which is increasingly rare and signifies the need for labour law reform to suit contemporary workers. Furthermore, resources that stimulate effective communication such as digital infrastructure and social networking technologies can support employee voice, particularly in working environments that rely less on in-person dialogue. For example, there has been a rise in expressions of employee voice through social media in the last decade because of its accessibility, simplicity, and efficiency; employees can avoid cumbersome voice channels, maintain greater control and confidence, and easily garner social support (Kalfa and Budd 2020). In summary, not every employee will experience the same benefit from employee voice legislation, their potential wellbeing gain is somewhat dependent on their resources.

Other Factors Impacting the Conversion of Employees’ Capability for Voice

The presence of employee voice legislation does not guarantee that employees will possess the capability for voice; its conversion can be inhibited or supported by structural, social, cultural, and personal influences. For example, at the macro-level by statutory frameworks and public policies that shape the labour market and employment relationship (Avendano and Berkman 2014); at the meso-level by workplace human resource practices, organisational structure, working conditions, and cultural norms; and at the micro-level by personal characteristics like age, gender, education, family status, personality, dispositions, attitudes, and beliefs (Kaufman 2015). These influences can take on different roles (i.e. resources, capabilities, conversion factors, etc.) within a capability-based analysis depending on the population be studied and employee voice law under evaluation. In some cases, they may be classified as other conversion factors which encompass environmental and personal conversion factors in addition to social conversion factors (Sen 1995). In the context of employees’ capability for voice, environmental conversion factors emerge from the physical or built environment where work is performed. For example, a large hierarchical organisation may serve as a barrier (negative conversion factor) of voice for employees working remotely with limited access to upper management, whereas a flat organisation may serve as a promoter (positive conversion factor) to voice for employees working in an office. Personal conversion factors emerge from work-related competencies like individual knowledge, skills, abilities, attributes, and characteristics. For example, an autistic employee who does not read social ques may be misunderstood or ignored when exercising their voice in an organisation that relies on neurotypical communication methods.

Upstream socio-economic-political trends like labour market deregulation can alter the conversion effectiveness of employee voice laws too. In fact, governments’ failure to reform labour laws to protect employees in contemporary employment relationships has weakened employees’ personal and collective capabilities for voice over the past four decades (Brental and Demougin 2010; Stansbury and Summers 2020). For example, employees of Amazon, Starbucks, and Walmart in North America have the right to unionise under labour law but are largely unsuccessful with their organising efforts due to powerful anti-union tactics used by management. Under these circumstances, the scale of power inequality between labour and capital is far too wide for employees with limited resources and job security to compete. This has arguably diminished job quality and fostered a growing labour force sector who struggle to manage frequent labour market transitions, periods of unemployment, job insecurity, and multiple part-time jobs throughout their working life.

Employee Wellbeing as Functionings

This article has discussed the fundamental role that employees’ capability for voice plays in their wellbeing freedom at work and in broader life. Through the lens of the capability approach, wellbeing is also comprised of achieved wellbeing, otherwise referred to as functionings. The distinction between capabilities and functionings is between what is effectively possible and what is realised. In other words, between opportunities from which one can choose and their actual achievements (Robeyns 2017, 39). According to Amartya Sen, “functionings are constitutive of a person’s being, and an evaluation of wellbeing has to take the form of an assessment of these constituent elements.” (Sen 1992, 2) Sen claims that alternative approaches to wellbeing analysis fail to provide a sufficient basis for wellbeing comparisons and in turn, social evaluation (Sen 1985). Functionings, in conjunction with capabilities, provide such a basis. As discussed previously, an employee with the capability for voice can shape their working conditions to achieve functionings that they have reason to value by bargaining for the removal or reduction of workplace stressors and the addition or enhancement of workplace resources.

The most systematic attempts to empirically evaluate employee wellbeing have often focused on integrated measures of job quality that exclude fundamental aspects of the employee experience (Budd and Spencer 2015). “Work needs to be embraced not as a private set of tasks done behind closed doors in a factory or an office, but as a very public activity with deep personal as well as societal meanings” (182). The rapidly evolving nature and organisation of employment has blurred the boundaries between professional and personal life. The two contexts are no longer distinct spheres, but ones that significantly overlap. Employees care about a range of issues beyond wages and working conditions; they care about how work shapes their daily lives, families, and communities (Chari et al. 2018; Cooke, Donaghey, and Zeytinoglu 2013). Considering this, a comprehensive list of functionings representative of different domains of employee wellbeing can serve as powerful index measure for evaluating employee voice legislation.

Why Functionings?

Some scholars have argued that capabilities should be the outcome measure of empirical evaluation rather than functionings to ensure ethical focus is placed on the constraints that people face rather than the choices they make (Comim 2008; Hick and Burchardt 2016). However, Sen has demonstrated through his own empirical work that inferences about one’s capabilities can be drawn from their functionings in some cases (Drèze and Sen 1989; 2002). For the evaluation of employee voice legislation, there are two justifications for why measures of functionings currently represent the strongest approach.

First, employees’ capability for voice involves constructive intent, that is to bring about positive change in their working life, which requires enough bargaining power to counterbalance employer power to realise. This feature of power in negotiations makes it difficult to determine whether an employee has the capability for voice without assessing the outcomes that result from their attempts to exercise it. In theory, an effective employee voice law should redistribute power away from employers and motivate them to compromise on employee matters that do not guarantee profit gains. In this way, an employer that chooses not to act upon these types of employee concerns likely maintains their power advantage, signifying a capability deficit among employees.

Second, representative surveys are often used to evaluate public policies that target large and diverse populations. Unfortunately, existing surveys do not include reliable and valid measures for employees’ capability for voice; the closest approximation are questions that ask respondents to rate the level of influence they think they have over workplace decision-making. This question is problematic for employees who have never tested their own capability for voice by attempting to bargain for a workplace change. In some circumstances, employees may perceive their capability for voice to be higher than it truly is. For example, management can display the illusion of voice by providing employees with a channel to express their concerns but only consider and act upon ones that directly relate to business performance. In contrast, an employee may perceive their capability for voice to be lower than it truly is. For example, an employee may observe unsuccessful outcomes from expressions of voice among their colleagues and wrongfully assume that this would be the case for them.

Therefore, measuring the change in functionings among employees who are exposed to an employee voice law while controlling for confounding variables can yield a close approximation of their resulting capability for voice. This approach does not place greater ethical weight on functionings, rather, it uses them as a proxy for capabilities due to research limitations. A mediation analysis using an employee voice indicator can be performed depending on the research deign and data availability. This approach can help to partially mitigate some of these measurement shortcomings to obtain a more accurate assessment of employees’ capability for voice.

List of Valuable Functionings for Achieved Employee Wellbeing

The identification of which functionings a particular evaluation should examine depends on the intervention. Sen deliberately underspecified the capability approach in this way to allow for its flexible application to different contexts (Alkire 2005). The ultimate objective of employee voice legislation is to promote employees’ capability for voice so that they can freely choose to pursue the functionings that they have reason to value. This is usually achieved by removing or reducing workplace stressors and adding or enhancing workplace resources. What functionings do employees value? Sen encourages us to answer this question democratically through participatory research methods (Robeyns 2017). However, this approach can present feasibility challenges for large-scale interventions that target diverse populations like national legislation. An alternative approach is to draw rigorously from the extensive literature on employee wellbeing to determine which functionings are universally valued among employees in the population being impacted by the law regardless of their demographic background.

Conceptualising and measuring employee wellbeing (synonymous with worker wellbeing) is a developing field of research. In the past decade, three multidisciplinary literature reviews have been conducted on worker wellbeing that capture work’s broader importance in human life. First is Budd and Spencer’s framework for worker wellbeing. They conceptualise workers as “fully functioning citizens who derive and experience both public and private benefits and costs from working” (Budd and Spencer 2015, 182). In this way, worker wellbeing is high when work helps individuals achieve valuable life states. Their framework consists of the following six dimensions: physical health and consumption; mental health and personal fulfilment; identity; freedom; caring for others; and service. Second is the National Institute for Occupational Safety and Health framework that defines worker wellbeing as “the experience of positive perceptions and the presence of constructive conditions at work and beyond that enable workers to thrive and achieve their full potential” (Chari et al. 2018, 590). The following five domains emerged from their review: workplace physical environment and safety climate; workplace policies and culture; health status; work evaluation and experience; home, community, and society. Third is Peters et al. Thriving from Work measure defined as:

A state of positive mental, physical, and social functioning in which workers’ experiences of their work and working conditions enable them to thrive in their overall lives, contributing to their ability to achieve their full potential in their work, home and community. (Peters et al. 2021, 5)

The authors identify psychological wellbeing from work; emotional wellbeing from work; social wellbeing from work; work-life integration; basic needs for thriving from work; job design and experience of work; and health as key domains for worker wellbeing (refer to journal articles for more detail).

When these three lists are synthesised, the following six functionings emerge: (1) Health: Physical and mental health; (2) Stability: Total compensation and job security; (3) Community: Social relations, support, engagement; (4) Safety: Physical and psychosocial work environment; (5) Personal Fulfilment: Meaning, purpose, job satisfaction, life satisfaction; and (6) Balance: Work-life integration (refer to Table 2 in appendix). Freedom is not included as a functioning despite it being listed as a domain in Budd and Spencer’s (2015) framework because it represents a capability according to Sen’s conceptualisation – a real freedom to achieve functionings (Sen 1985). In fact, Budd and Spencer (2015) describe freedom as employees’ capability for voice in several forms such as protections for free speech, self-determination, and collective organising, which signifies its alignment with the capability approach. This list of functionings is relatively sensitive to cross-cultural variation but more research is needed to confirm its representativeness of employee wellbeing across affluent democracies. Figure 2 provides a visual representation of the capability-based evaluative framework for employee voice legislation outlined in this article.

Figure 2. Visualisation of evaluative framework for employee voice legislation.

Dynamics of Functionings

The functionings outlined above are similar in nature to James Griffin’s conceptualisation of “prudential values’ in that they contain elements recognised as valuable to anyone because they distinctively make life go better (Griffin 1996). Griffin has shown that different wellbeing “lists’ developed by and for different populations can often be generalised into prudential values that accommodate diverging views of wellbeing (Griffin 1996). In such a case, employees with the capability for voice will likely aim to achieve one or more of these functionings to varying degrees depending on their unique circumstances and preferences. For example, a student working to fund their education may feel deprived of security and seek an increase in pay or benefit coverage to enhance their wellbeing, while a parent who feels deprived of balance may seek greater flexibility in their work schedule to spend more time with their children. Furthermore, these functionings can positively reinforce one another. For example, an employee experiencing burnout who desires better work-life balance may seek greater support from their managers to reduce their work intensity which also enhances their sense of community. This approach is consistent with Sen and Rawls’ arguments that wellbeing is intrinsically multidimensional (Anand and Sen 1997; Nussbaum and Sen 1993; Rawls 1971)

Operationalisation

This article has demonstrated that employee voice legislation plays a critical role in the employment relationship for promoting employees’ capability for voice and in turn, enhancing their wellbeing. However, multiple factors influence its effectiveness that are well captured through a capability-based framework compared to other forms of economic analysis, thereby revealing a more accurate depiction of labour’s power relative to capital. If employee voice legislation does not translate into greater employee wellbeing through the expansion of their capability for voice, then is the legislation achieving its aim? Likely not. Therefore, we need to consider how this framework can be operationalised for empirical analysis to better understand which laws are most effective, for whom, and why.

Production Function

Figure 3 depicts a simple production function that can be translated into a regression equation, the foundation of many econometric tools used to infer cause, to operationalise this framework for empirical evaluation. In this production function, the employee voice law under evaluation represents the dependent variable and achieved wellbeing (i.e. the six functionings outlined in Table 2) represents the independent variable. Finally, employee voice represents the mediating variable between employee voice legislation and achieved wellbeing. In this way, a mediation analysis can help explain how much of a change in functionings resulting from an employee voice law can be attributed to a change in employees’ capability for voice. Quantitative methods such as difference-in-difference, regression discontinuity, and instrumental variables can be used to estimate the causal impact of an employee voice law using time-series data that captures achieved wellbeing before and after a legislative change for both a control and treatment group. Further exploratory analysis can be conducted to assess which factors may be impeding the conversion of employees’ capability for voice. For example, a comparative analysis assessing the variance in achieved wellbeing across gender, age, race, income-level, family status or region can reveal interesting insights about the effectiveness of an employee voice law on different demographic groups. Lastly, qualitative methods such as ethnography and interviews can facilitate rich contextual information when used in combination with quantitative methods or independently.

Figure 3. Production function.

Table 2. Employee wellbeing functionings.

Functioning	Description
Health	Physical and mental health
Stability	Pay, benefits, and job security
Community	Social relations, support, and engagement
Safety	Physical and psychosocial work environment
Personal Fulfilment	Meaning, purpose, job satisfaction, and life satisfaction
Balance	Work-life integration

Indicators

The appropriate indicators must be identified to measure each functioning, which will vary according to the research context. For example, a narrow evaluation focusing on a specific occupation may use specialised measures unique to that population compared to a broad evaluation encompassing all occupations within a country. The impact of the law on each functioning can be assessed individually as well as multidimensionally. The quality of indicators will depend on data availability if primary data collection is not feasible. Fortunately, many large-scale social surveys do measure several wellbeing functionings, but limitations will present themselves. Although secondary data may not yield a perfect analysis, it will still provide valuable and useful information. As Sen states in Inequality Reexamined, the capability approach can be used at various levels of sophistication, “what is important is keeping the underlying motivations in clear view to see the practical compromises as the best we can do under the circumstances” (Sen 1995, 10).

Multidimensional Index Composition

Once each functioning is measured individually, they can be aggregated into a single measure using an appropriate weighting methodology in which there are several approaches that have different conceptual foundations, produce different scalar measures of wellbeing, and lead to different policy implications. The most commonly discussed weighting methods for index composition are the following (Greco 2016): (1) equal: dimension have equal weight (agnostic); (2) normative: value judgements or expert opinions of specific groups determine weights; (3) data-driven: descriptive or explanatory statistical techniques determine weight (ex. Principal component analysis and factor analysis); and (4) hybrid: combination of normative and data-driven. The appropriate method will depend on the research question. For large sample populations, ranking functionings based on normative value judgements is impractical since everyone’s preferences are unlikely to be captured, so equal weight is often used due to its simplicity and agnostic nature (Alkire and Foster 2011; Anand and Sen 1997; Greco 2016). In fact, global indexes based on the capability approach like the Human Development Index (Anand and Sen 1997) and the Global Multidimensional Poverty Index (Alkire and Foster 2011) are aggregated according to equal weights. However, if a researcher is interested in determining which members of society are worse off than others, then consideration of the other methods may be necessary since this type of analysis typically uses thresholds to define wellbeing quantiles (Greco 2016). In other words, different proportions of the population can be considered “deprived” depending on which method is used.

Conclusion

Employee voice constitutes a human capability according to Sen’s conceptualisation because it fosters opportunity freedoms for employees to achieve desired states of being that they have reason to value. Employees who possess the capability for voice can bargain for better working conditions to improve their welfare either individually or collectively. However, this requires some degree of state intervention in the form of employee voice legislation to be successful. There are several types of laws that promote different expressions of employee voice and to different degrees. Theoretically, an employee who has robust state support for voice should be better off than one who does not. Unfortunately, we have limited empirical evidence to support this claim since employee voice laws have historically been evaluated using neoliberal and new institutional forms of economic analysis that fail to adequately measure employee wellbeing beyond job quality (Budd and Spencer 2015). This article has suggested the capability approach as a useful tool for evaluating employee voice legislation due to its strong conceptual fit that can yield fresh insights into employee wellbeing in the twenty-first century. As such, an index measure of achieved employee wellbeing represented by six functionings is put forward that can be used as a powerful proxy of employees’ capability for voice for empirical evaluation: health, stability, community, safety, personal fulfilment, and balance.

The capability approach has been criticised for being too informationally demanding to be feasible for operationalisation. This article has shown that a precise research question focused on the conversion of a single capability, one that is widely agreed upon as valuable, demands less information and can translate into a practical framework for empirical analysis. It has also demonstrated how Sen’s approach to wellbeing analysis provides a comprehensive evaluative space for employees’ capability for voice that facilitates a richer understanding of its determinants and consequences to inform future labour law.

Acknowledgements

I am sincerely grateful to Aaron Reeves, Paul Anand, Tania Burchardt, Mark Fabian, Pietro Ghirlanda, Giulia Greco, Tom Stephens, and the two anonymous reviewers for their helpful comments at various stages of this article’s development.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Cherise Regier

Cherise Regier is a PhD candidate in Social Intervention and Policy Evaluation at the University of Oxford. Her doctoral thesis examines the wellbeing implications of declining worker power across high-income countries through the evaluation of interventions that promote or inhibit employee voice in the workplace. Her research aims to enhance our understanding of how worker power functions as a determinant of employee wellbeing, and how it is produced and sustained in the contemporary employment relationship using the Capability Approach as a theoretical framework. Cherise is a Research Associate for the University of Oxford’s Wellbeing Research Centre where she contributes to various research projects investigating the dynamic link between work and wellbeing to inform business practices and public policy.