The Contract of Employment

Cover
THE CONTRACT OF EMPLOYMENT
Copyright
LIST OF AUTHORS
FOREWORD: The Rt Hon Lord Justice Underhill
EDITORS’ PREFACE
CONTENTS
TABLE OF CASES
	UNITED KINGDOM
	COURT OF JUSTICE OF THE EUROPEAN UNION
	EUROPEAN COURT OF HUMAN RIGHTS
	EUROPEAN COMMITTEE OF SOCIAL RIGHTS
	UNITED NATIONS HUMAN RIGHTS COMMITTEE
	INTERNATIONAL JURISDICTIONS
		Australia
		Canada
		New Zealand
		United States
TABLES OF LEGISLATION
	UNITED KINGDOM STATUTES
	UNITED KINGDOM STATUTORY INSTRUMENTS
	EUROPEAN UNION LEGISLATION
		Regulations
		Other Instruments
	INTERNATIONAL LEGISLATION
		Australia
		Canada
		France
		USA
	TREATIES AND CONVENTIONS
		European
		International Labour Organization
		United Nations
LIST OF ABBREVIATIONS
PART I. THE GENERAL PART—STRUCTURES AND THEMES
	1. GENERAL INTRODUCTION—AIMS, RATIONALE, AND METHODOLOGY
		Introduction
		1. The Problematical Centrality of the Contract of Employment
		2. The Institutional Basis of the Law of the Contract of Employment
		3. The Contract of Employment between Agreement and Regulation
		4. A Normative Reconstruction of the Law of the Contract of Employment
		5. Doctrinal Analysis of the Law of the Contract of Employment
	2. THE LEGAL STRUCTURE OF THE CONTRACT OF EMPLOYMENT
		Introduction—Structure and Variety in the Law of the Contract of Employment
		1. A Theory of Structural Principles
		2. The Three Central Principles of Exchange, Integration, and Reciprocity
		3. Variety and Evolution in the Structure of the Contract of Employment
		Conclusion—Principle, Normativity, and Practice in the Evolving Structure of Contracts of Employment
	3. THE EXCHANGE PRINCIPLE AND THE WAGE-WORK BARGAIN
		Introduction—The Wage-Work Bargain, Fair Exchange, and Stability
		1. ‘Fair Exchange’ in the Law of the Contract of Employment
			A. Conditionalities
			B. Parities
			C. Minimum Standards
		2. ‘Stability’ in the Regulation of the Wage-Work Bargain
		3. Exchange, Integration and Reciprocity, and the Changing Structures of the Wage-Work Bargain
		4. The Wage-Work Bargain and the Adequacy of the Contract of Employment
	4. THE RELATIONSHIP BETWEEN THE CONTRACT OF EMPLOYMENT AND STATUTE
		Introduction
		1. The Primacy of the Contract of Employment
		2. The Primacy of Statute
			A. Statute as ‘Permissive’ of Common-Law Development
			B. Statute as ‘Restrictive’ of Common-Law Development
				Edwards v Chesterfield Royal Hospital
				Injunctions
				Conclusion
		Conclusion
	5.THE CONTRACT OF EMPLOYMENT AND COLLECTIVE LABOUR LAW
		Introduction
		1. The Contract of Employment—From Atrophy to Formalization
			A. Collective Bargaining and the Atrophy of the Employment Contract: 1850–1950
			B. The Donovan Commission: The End of ‘Atrophy’?
			C. The Individualization of the Employment Contract: From Atrophy to Formalization
		2. The Unitary Contract of Employment
			A. Towards a Unitary Model of the Contract of Employment
			B. Open-ended Employment as Standard
			C. A Standard Employment Relationship?
			D. Flexibility and Employment
		3. The Wage-Work Bargain and Industrial Action
			A. Strike Action: Breach, Suspension, and Fundamental Human Rights
			B. Industrial Action and the Wage-Work Bargain: A Principle of Fair Exchange?
		Conclusion
	6. THE AUTONOMY OF THE COMMON LAW OF THE CONTRACT OF EMPLOYMENT FROM THE GENERAL LAW OF CONTRACT
		Introduction
		1. The Pluralism of Contract Law
		2. Modifying the General Framework
		3. Modification and Cross-fertilization
		4. The Opportunities for and Perils of Further Cross-fertilization
		5. Changes in the External Environment
		6. The Role of Policy
		7. The Role of Third Parties
		8. Construction
		9. Further Developments
		Conclusion
	7. RELATIONAL CONTRACTS
		Introduction
		1. Long-term or Relational?
		2. Arriving at a Judicial Conception of a Relational Contract
		3. Determining the Norms of the Relationship
		4. The Significance of Judicial Recognition
		5. Future Developments?
			A. Reciprocity
			B. The Norms of the Relationship
			C. Relational Contracting and Non-Contractual Relationships
			D. Multiple Relationships
			E. Preservation of the Relationship
			F. Maintenance of the Relationship and Self-help
	8. THE CONTRACT OF EMPLOYMENTAND THE REMEDIAL DIMENSION
		Introduction
		1. Remedying Contractual Wrongdoing in Empirical Perspective
			A. Forming Work Relations
				The employee perspective
				The employer perspective
			B. Conducting and Ending Work Relationships
				Evidence about problems at work
				Evidence about employment litigation
			C. Empirical Conclusions
			D. Uncovering the Normativity of the Common Law of the Contract of Employment
		2. Remedying Contractual Wrongdoing in Doctrinal Perspective
	9. HUMAN RIGHTS AND THE CONTRACT OF EMPLOYMENT
		1. The Common Law and Human Rights
		2. Human Rights in the Construction of the Contract of Service
			A. Right to Work
			B. Right to Strike
			C. Right to Peaceful Enjoyment of Property
			D. Right to Liberty and the Contrast with Slavery and Forced Labour
		3. Human Rights as a Foundational Perspective for Employment Law
			A. Areas of Concern
				Collective interests and solidarity
				Competing rights
				Fairness
			B. Potential Benefits of a Human Rights Orientation
				Universality and personal scope
				Inalienability and derogation by terms of employment
		4. The Challenge of Civil Liberties to the Relation of Subordination
			A. Unfair Dismissal and the Test of Reasonableness
			B. Implied Term of Mutual Trust and Confidence
			C. Wrongful Dismissal and Human Rights
		Conclusion
	10. FRAGMENTING WORK, FRAGMENTED REGULATION
		Introduction
		1. Fragmenting Work, Fragmented Regulation, and Social Exclusion
			A. Fragmented Work and Fragmented Regulation
			B. The Three Meanings of Social Exclusion
		2. The Standard Contract of Employment as a Driver of Social Exclusion
			A. Fragmenting Work
				Zero-hours work and mutuality of obligation
				Requirement of pay
			B. Fragmented Regulation
				The ‘worker’ category
				Domestic workers
				Employee shareholder ‘status’ and zero-hours contracts
		Conclusion
	11. THE CONTRACT OF EMPLOYMENTAND GENDERED WORK
		Introduction
		1. Women’s Work—A Historical Perspective
		2. Paid Domestic Work
		3. The Exclusionary Role of the Contract of Employment in Modern Labour Law
		4. Atypical Contracts, Precarious Work, and Gender—Home Care Workers
			A. Zero-Hours Contracts and Home Care Work
			B. Mutuality of Obligation and Employment Status
			C. Work Organization and the Minimum Wage
			D. The Conundrum of Paid Home Care
		5. The Way Forward? Moving Beyond Contract
		Conclusion
	12. THE CONTRACT OF EMPLOYMENT, CORPORATE LAW, AND LABOUR INCOME
		Introduction
		1. The Corporation as a Nexus of Contracts
		2. The Melding of Contract and Status
		3. Shareholder Value and Human Capital
		3. Shareholder Value and Human Capital
		4. Property, Trust, and Legitimate Expectations
		5. Claims upon Termination of Employment
		Conclusion
	13.DEVELOPMENTS IN CONTRACT OF EMPLOYMENT JURISPRUDENCE IN OTHER COMMON-LAW JURISDICTIONS
		Introduction
		1. Collective Industrial Relations in Australia
			A. Relationship between Industrial Awards and Contract
			B. Influence of Tribunals
		2. Commercial and Social Influences on the Development of Employment Contract Law
		3. Australian Recognition of English Developments
			A. Johnson v Unisys and Coherence in the Law
			B. Damages for Mental Distress
			C. Mere Distress
			D. Damage to Reputation
			E. Autonomous Development of Employment from General Commercial Contract Law
		Conclusion
	14. A COMPARATIVE REFLECTION FROM CANADA—A GOOD FAITH PERSPECTIVE
		Introduction
		1. Good Faith in England and Canada: Normative Convergence Amidst Structural Difference
		2. The Structure of the Chapter
		3. The History—Addis in Canada
		4. The Doctrine
			A. The Limits of Wrongful Dismissal Damages
			B. Constructive Dismissal and the Implied Duty of Civility
			C. Limitation on Negligence Claims in Employment
			D. The New Duty of Honest Contractual Performance
		Conclusion
PART II. THE SPECIFIC PART—AREASAND DOCTRINES
	15. THE DEFINITION OF THE CONTRACT OF EMPLOYMENT AND ITS DIFFERENTIATION FROM OTHER CONTRACTS AND OTHER WORK RELATIONS
		Introduction
		1. The Problem of Definition
		2. ‘Of Service’ or ‘For Services’
		3. Common-Law Tests for Identifying Employment
			A. Control
			B. Organizational Integration
			C. Economic Reality
			D. Mutuality of Obligation
			E. Multi-indicia or Multifactorial Test
		4. Manipulation of Tests
		5. Triangular Relationships
		6. Responses to the Boundary Problem
			A. Legislative Solutions
			B. Sham Contracting Provisions
		Conclusion
	16. EMPLOYEES, EMPLOYERS, AND BEYOND: Identifying the Parties to the Contract of Employment
		Introduction
		1. The Central Role of the Contract of Employment in Shaping the Definition of Employee and Employer
			A. The Role of Contract as the ‘Fundamental Legal Institution’
			B. The Received Understanding of the Contract of Employment as a Bilateral Relationship
			C. The Resulting ‘Third-Party Problem’
		2. Identifying the Parties to the Contract of Employment: The Employee
			A. Mutuality of Obligation
			B. Workers under Zero-Hours Contract Arrangements
			C. Partnerships and Limited Liability Partnerships
		3. Identifying the Parties to the Contract of Employment: The Employer
			A. Agency Work and Outsourced Labour
			B. Corporate Groups
			C. Customers
		Conclusion
	17.THE CONTRACT OF EMPLOYMENT AS AN EXPRESSION OF CONTINUING OBLIGATIONS
		Introduction
		1. Continuity in Employment in a Historical Perspective—From the Annual Hiring Model to the Contract of Employment of Indefinite Duration
		2. The Three Dimensions of Continuity: Length of Service, Regularity, and Nature of the Obligations
		3. Continuity and Length of Service
			A. Establishing Length of Service—Commencement and Ending
			B. Length of Service across Different Employers
			C. Continuity, Length of Service, and Equal-treatment Legislation
		4. Continuity and Regularity
			A. Regularity, Statute, and Contract
			B. Regularity Within the Contract of Employment
			C. Regularity Between Separate Contracts of Employment
		5. Continuity, Mutuality, and the Nature of the Contract
		Conclusion
	18. FORMATION OF THE CONTRACT OF EMPLOYMENT
		Introduction
		1. Contract, Statement, and Sources of Labour Law
		2. Effects of the Decline of Collective Bargaining and the Rise of Standard-form Employment Contracts
		3. Reform of the Written Statement Law
		Conclusion
	19. ILLEGALITY, PUBLIC POLICY, AND THE CONTRACT OF EMPLOYMENT
		Introduction—Illegality and the Institutional Nature of the Contract of Employment
		1. The Normative Structure of Illegality
			A. General Principles
			B. The Future of Illegality: Public Policy and Fundamental Rights
		2. The Legal Structure of the Illegality Enquiry in Employment Claims
			A. Characterizing the Nature of the Employment Claim: Contract or Tort?
			B. Contractual Illegality
			C. Statutory Illegality
			D. Illegality in Performance of Employment Contracts: Employment Rights and the Revenue Regime
				The sufficiency of illegality: turpitude and proximity
				Illegality and accessory liability: knowledge and active participation
				Illegality and public policy balancing
		3. The Legal Effects of Illegality on Contractual Rights
			A. The Distinction between Culpable and Innocent Parties
			B. The Doctrine of Severance
			C. Restricting Recoverable Damages While Leaving the Legal Right Unimpaired
			D. Restitutionary Claims for Quantum Meruit
		Conclusion
	20. TERMS INSERTED INTO THE CONTRACT OF EMPLOYMENT BY LEGISLATION
		Introduction
		1. Terms Imposed by Statute
			A. Notice
			B. Equal Pay for Men and Women
			C. National Minimum Wage Arrears
			D. Choice of Enforcement Option
			E. Conclusion
		2. Statutory Rights given Contractual Effect by the Courts
		Conclusion
	21. THE CONTENT OF CONTRACTS OF EMPLOYMENT—TERMS INCORPORATED FROM COLLECTIVE AGREEMENTS OR FROM OTHER SOURCES
		Introduction
		1. General Approach to Incorporation of Terms from Other Sources
		2. Collective Agreements
		3. Company Handbooks
		4. Disciplinary and Grievance Procedures
		5. Differential Treatment of Collective Agreements
		Conclusion
	22. IMPLIED TERMS IN THE CONTRACT OF EMPLOYMENT
		1. The Types of Implied Terms in Employment
		2. Test for Terms Implied in Fact
		3. Test for Terms Implied by Law
		4. Confusion in the Use of Implied Terms
			A. Metamorphosis from Fact to Law
			B. Instrumental Misclassification
		5. Exclusion of Implied Terms
		6. Implied Terms in the Era of Written Contracts of Employment
	23. VARIATION AND SUSPENSION OF THE CONTRACT OF EMPLOYMENT AND ITS TERMS
		Introduction
		1. Variation—Key Principles
		2. Sources of the Ius Variandi—Ex Ante Clauses and Ex Post Agreement
			A. Contractual Variation Clauses
				Contractual variation clauses and other contractual documents
				Contractual variation clauses and collective agreements
			B. Variation by Subsequent Agreement
				Consideration
				Consent
		3. Limitations upon Variation
			A. Mutual Trust and Confidence
			B. Collective Agreement
		4. Suspension—Key Principles
		5. Sources and Possible Effects
		6. Limitations upon Suspension
		Conclusion
	24. DURATION, LAWFUL TERMINATION, AND FRUSTRATION OF THE EMPLOYMENT CONTRACT
		Introduction—Policy, Context, and Doctrine
		1. Duration
			A. Basic Sketch
			B. Reform
		2. Termination by Lawful Dismissal
			A. Dismissal by Reasonable Notice or Payment in Lieu of Notice
			B. Reform
			C. Summary Dismissal
		3. Termination by Resignation or Retirement
			A. Resignation
			B. Retirement
		4. Termination by Expiry and Non-renewal of a Fixed-term Employment Contract
		5. Non-lateral Termination: Frustration
		Conclusion
	25. THE WRONGFUL TERMINATION OF THE CONTRACT OF EMPLOYMENT
		Introduction
		1. The Enduring Legacy of Addis v Gramophone Company Ltd
		2. From Addis to Johnson: The Rise and Fall of Mutual Trust and Confidence in the Sphere of Wrongful Dismissal
		3. The Restrictiveness of Johnson v Unisys
		4. The Constitutional Basis to Johnson
		5. The Resilience of Addis in Johnson
		6. Conclusion: The Culmination in Edwards v Chesterfield
	26. THE EFFECT OF TERMINATION UPON POST-EMPLOYMENT OBLIGATIONS
		Introduction
		1. Repudiatory Breach, Wrongful Termination, and Post-Employment Primary Obligations
			A. Introduction
			B. Primary and Non-primary Obligations
			C. Nature and Content of Obligations Imposed Post-Employment when Employer is in Repudiatory Breach
			D. Nature and Content of Obligations Imposed Post-Employment when Employee is in Repudiatory Breach
			E. Post-Employment Obligations: Some Analytical Reflections
		2. Restrictive Covenants and Garden Leave
		Conclusion
	27. INTELLECTUAL PROPERTY AND THE CONTRACT OF EMPLOYMENT
		1. Introduction
			A. Intellectual Property in the Context of the Employment Relationship
			B. The Common-Law Position
			C. Statutory Regimes
		2. Limitations Inherent in the Contract of Employment
			A. Unclear Scope of the Statutory Provisions
			B. Inability to Deal with Complex Situations
		3. Limitations Arising from Express Terms
			A. The Common Law
			B. The Patents Act 1977
		4. Limitations Arising from the Implied Term of Confidentiality
		Conclusion
	28. REMEDIES FOR BREACH AND FOR WRONGFUL DISMISSAL
		Introduction
		1. Recovering Employment Contract Debts and Enforcing Obligations in Ongoing Contracts of Employment
			A. Debt versus Damages Claims
			B. Enforcing Contractual Obligations in Ongoing Contracts
				Disputing unilateral variation
				Disputing contractual meaning
		2. Recovering Damages for Breach Unconnected to Termination
			A. Personal Injury Claims
			B. Valuable Money Claims
		3. Recovering Damages for Breaches Connected to Termination
			A. Contractual Termination Entitlements on Solid Ground
			B. Contractual Termination Entitlements on Shifting Sands
		4. Injunctive Relief from Breaches of Contract
		Conclusion
	29. THE CONTRACT OF EMPLOYMENT IN ITS INTERNATIONAL AND EUROPEAN LAW SETTING
		Introduction
		1. The Private International Law Setting
		2. The Territoriality of UK Employment Law
		3. Application of UK Employment Law in International Cases
			A. The Law Applicable to the Contract of Employment
			B. Preventing the Employer from Contracting Out of Employment Protection: Non-excludable Rules
				The application of non-excludable rules: Article 8(1) RIR
				Identifying an ‘individual contract of employment’ for the purposes of RIR and BIR recast
			C. Overriding Mandatory Rules
				The importance of overriding mandatory rules in the context of posted workers
		4. A Re-examination of the Territoriality Principle?
		Conclusion
INDEX