Private Law and the Employment Contract.

Format:

Book

Contributor:

Bogg, Alan, editor.

Davies, Paul S., editor.

Bloomsbury (Firm), publisher.

Language:

English

Subjects (All):

Labor contract.

Physical Description:

1 online resource (269 pages)

Edition:

1st edition.

Place of Publication:

London : Hart Publishing, 2025.

Summary:

This book brings together leading scholars from private law and employment law to reflect upon private law doctrines as they relate to the employment contract. Developing an interdisciplinary dialogue, these contributions explore the regulatory functions of private law doctrines at the cutting-edge of modern employment law. Topics include: the potential and limitations of private law damages; the role of injunctions and specific performance; the interactions between express and implied terms; vicarious liability; substantial performance and breach; and the common law right to work. The integration of scholarly perspectives from the realms of private law and employment law enriches and deepens our understanding of core private law doctrines. Historically, employment law was defined in terms of its autonomy from general private law. This achievement of autonomy was highly prized, and considered necessary to facilitate industrial freedoms for trade unions and the protection of employees from exploitation. But the contractual basis of employment means that any such autonomy has always been partial and unstable. Furthermore, as trade unions have declined and governments have deregulated statutory employment rights, private law has assumed growing practical importance in strategic appellate litigation. In many common law jurisdictions, private law doctrines have become the new battleground between employers, workers, and trade unions. The essays in this book examine specific doctrinal issues against this dynamic backdrop of changing social, economic, and constitutional conditions. While focused mainly on English law, the essays also consider examples from other jurisdictions such as Australia and Scotland. As private law becomes the default regulation for most employment contracts in 21st-century labour markets across the world, this book is an essential resource for practitioners, judges, academics and students.

Contents:

Intro

Foreword

Preface

Contents

List of Contributors

Table of Cases

Table of Legislation

1. Private Law Perspectives on the Employment Contract

2. Why There is Not Yet (But Could be Soon) a Principle of Favourability in British Labour Law

I. Introduction

II. The Principle of Favourability in the Civil Law

III. The Principle of Favourability in English Law

IV. Statute versus Contract: Common Law 'Culture' or Statutory Purpose?

V. Collective Bargaining versus Contract: On the Nature of a Labour Law 'Source'

VI. Wider Challenges to the Principle of Favourability: Flexibilisation and Fragmentation of Labour Law Rules

VII. An Emergent Principle of Favourability for British Labour Law

VIII. Conclusion

3. The Variation of Commercial and Employment Contracts: Revisiting the Question of Explicit Worker Consent

II. The Nature of a Commercial Contract and the Relationship between Commercial Contractors

III. The Nature of the Contract of Employment and the Employment Relationship

IV. The Attenuated Role for Explicit Consent and the Case for and against Reforming the Law Governing the Variation of the Employment Contract

V. Conclusion

4. Substantial Performance in Employment Contracts

II. The Current Law

III. The 'Doctrine' of Substantial Performance

IV. Application to Employment Contracts

V. No Deductions?

VI. The Limits of Private Law

VII. Conclusion

5. Remedies in Workplace Discrimination Law: Private Law Perspectives on Damages

II. The Australian Legislative Remedial Regime

III. The Legislative Regime in Great Britain

IV. The Exercise of Court and Tribunal Remedial Powers

V. Remedial Awards in Practice.

VI. Using Tort to Transform Equality Law Damages: Australian Discrimination Law and Richardson v Oracle

VII. The Legacy of Richardson in Australian Discrimination Law

VIII. Comparison with Tort as a Way Forward?

IX. Conclusion

6. Damages for Breach of the Contract of Employment: Valuing the Loss of a Chance

II. The General Legal Framework

III. Recovery Arising Out of Wrongful Termination of Employment

IV. Examining English and Australian Case Law

V. The Prospect of Damages for Loss of a Chance of Maintaining an Employment Relationship

VI. Conclusion

7. Specific Performance and the Contract of Employment

I. The Reluctance to Decree Specific Performance in a Contract of Employment

II. Why Equity will not Decree Specific Performance in a Contract of Employment

III. Why Equity should Decree the Specific Performance of a Contract of Employment

IV. Conclusions

8. The Injunction Dilemma

I. Employment Law and Compliance

II. Conditions for the Grant of an Injunction

III. Injunctions to Enforce Statutory Rights

IV. Practicalities

9. The Impact of the Law of Tort

II. The Function of Tort Law

III. The Modern Law of Vicarious Liability

IV. Stage One and Scope of Employment

V. Stage Two and the Akin to Employment Test

VI. Conclusions

10. Is There a Right to Work?

II. Damages

III. Declarations and Injunctions

IV. Conclusion

Index.

ISBN:

1-5099-8161-6

1-5099-8159-4

1-5099-8160-8

OCLC:

1530078493