MARK R. FREEDLAND FBA
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199298631
- eISBN:
- 9780191719400
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298631.003.0004
- Subject:
- Law, Company and Commercial Law
This chapter seeks to complete the analysis of the identity, nature, and main attributes of personal work or employment contracts by considering how, in the law of personal work or employment ...
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This chapter seeks to complete the analysis of the identity, nature, and main attributes of personal work or employment contracts by considering how, in the law of personal work or employment contracts, the content of those contracts is conceived and constructed. The first section explains the idea of guiding principles in relation to the express and implied terms of personal work or employment contracts. The succeeding sections articulate each of the guiding principles in more detail.Less
This chapter seeks to complete the analysis of the identity, nature, and main attributes of personal work or employment contracts by considering how, in the law of personal work or employment contracts, the content of those contracts is conceived and constructed. The first section explains the idea of guiding principles in relation to the express and implied terms of personal work or employment contracts. The succeeding sections articulate each of the guiding principles in more detail.
Mark Freedland
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199298631
- eISBN:
- 9780191719400
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298631.001.0001
- Subject:
- Law, Company and Commercial Law
This book is an analytical study of the current English law of traditional contracts of employment and of other personal employment contracts. Concentrating on the common law basis of individual ...
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This book is an analytical study of the current English law of traditional contracts of employment and of other personal employment contracts. Concentrating on the common law basis of individual employment law, it takes full account of relevant British and European Community legislation up to and including the Employment Act 2002, and considers the impact of the Human Rights Act 1998 and of the developing law of human and social rights more generally. This book takes account of the very considerable amount of case-law, legislation, and legal writing which has affected the law of the contract of recent employment. This book addresses a wide range of employment relationships; in fact, it argues for and is constructed around a whole new category of employment contracts, which includes not only contracts of employment but also other ‘personal employment contracts’, a concept which the book articulates and justifies. Within that novel conceptual framework, many of the major features of the law of employment contracts are re-examined and presented in unfamiliar and challenging terms. Thus, the employer is re-conceptualized as the ‘employing enterprise’, the bilateral structure of employment contracts is re-evaluated, and new explanations are advanced for the functioning of the law of termination of employment contracts and of remedies for wrongful termination.Less
This book is an analytical study of the current English law of traditional contracts of employment and of other personal employment contracts. Concentrating on the common law basis of individual employment law, it takes full account of relevant British and European Community legislation up to and including the Employment Act 2002, and considers the impact of the Human Rights Act 1998 and of the developing law of human and social rights more generally. This book takes account of the very considerable amount of case-law, legislation, and legal writing which has affected the law of the contract of recent employment. This book addresses a wide range of employment relationships; in fact, it argues for and is constructed around a whole new category of employment contracts, which includes not only contracts of employment but also other ‘personal employment contracts’, a concept which the book articulates and justifies. Within that novel conceptual framework, many of the major features of the law of employment contracts are re-examined and presented in unfamiliar and challenging terms. Thus, the employer is re-conceptualized as the ‘employing enterprise’, the bilateral structure of employment contracts is re-evaluated, and new explanations are advanced for the functioning of the law of termination of employment contracts and of remedies for wrongful termination.
MARK R. FREEDLAND FBA
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199298631
- eISBN:
- 9780191719400
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298631.003.0010
- Subject:
- Law, Company and Commercial Law
This chapter discusses the category of transformation. The first section considers the topic of transformation and its relation to those of formation and termination, in terms of an underlying notion ...
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This chapter discusses the category of transformation. The first section considers the topic of transformation and its relation to those of formation and termination, in terms of an underlying notion of the elasticity of the personal employment contract. The remainder of the chapter discusses the particular dimensions of transformation, specifically those of (1) change mode or suspension, and (2) change of parties to the personal employment contract. The chapter concludes by considering the complex topic of transfer of contracts under the TUPE Regulations.Less
This chapter discusses the category of transformation. The first section considers the topic of transformation and its relation to those of formation and termination, in terms of an underlying notion of the elasticity of the personal employment contract. The remainder of the chapter discusses the particular dimensions of transformation, specifically those of (1) change mode or suspension, and (2) change of parties to the personal employment contract. The chapter concludes by considering the complex topic of transfer of contracts under the TUPE Regulations.
Paul Davies and Mark Freedland
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199217878
- eISBN:
- 9780191712326
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217878.001.0001
- Subject:
- Law, Employment Law
This book deals with the development of employment legislation and policy in the United Kingdom during the period from the early 1990s until 2006. The core of the work consists of a critical analysis ...
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This book deals with the development of employment legislation and policy in the United Kingdom during the period from the early 1990s until 2006. The core of the work consists of a critical analysis of the policy and legislation of the ‘New Labour’ governments headed by Tony Blair, and considers both domestically-driven initiatives and those governments' responses to employment initiatives stemming from the social policy of the European Community. The book constitutes a successor volume to the same authors' Labour Legislation and Public Policy (OUP, 1992), which covered the period from the end of the Second World War to the early 1990s, but it is also a free-standing book in its own right. The work argues for an understanding of this body of legislation and regulatory activity as being directed towards the realisation of a flexible labour market. It shows how the flexibility objective has been pursued in three intersecting areas: regulating personal employment relations; promoting a collective ‘voice’ for employees at work; and maximising levels of employment. The book assesses how far the goal of flexibility has been achieved and also analyses the regulatory techniques generated by this policy and the strengths and limitations of making labour market flexibility the cornerstone of employment legislation and policy.Less
This book deals with the development of employment legislation and policy in the United Kingdom during the period from the early 1990s until 2006. The core of the work consists of a critical analysis of the policy and legislation of the ‘New Labour’ governments headed by Tony Blair, and considers both domestically-driven initiatives and those governments' responses to employment initiatives stemming from the social policy of the European Community. The book constitutes a successor volume to the same authors' Labour Legislation and Public Policy (OUP, 1992), which covered the period from the end of the Second World War to the early 1990s, but it is also a free-standing book in its own right. The work argues for an understanding of this body of legislation and regulatory activity as being directed towards the realisation of a flexible labour market. It shows how the flexibility objective has been pursued in three intersecting areas: regulating personal employment relations; promoting a collective ‘voice’ for employees at work; and maximising levels of employment. The book assesses how far the goal of flexibility has been achieved and also analyses the regulatory techniques generated by this policy and the strengths and limitations of making labour market flexibility the cornerstone of employment legislation and policy.
MARK R. FREEDLAND FBA
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199298631
- eISBN:
- 9780191719400
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298631.003.0006
- Subject:
- Law, Company and Commercial Law
This chapter considers the way in which the idea of variation is formulated and treated within the law of personal work or employment contracts, and how the treatment of variation fits into the ...
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This chapter considers the way in which the idea of variation is formulated and treated within the law of personal work or employment contracts, and how the treatment of variation fits into the analysis of the way that the law of personal work or employment contracts functions and fulfills its task. It argues that the courts and tribunals have tended, in their approach to the variation of personal work or employment contracts, towards a greater understanding than had previously been displayed of the personal work or employment contract as a relational contract. This tendency challenges the analysis of the contract of employment as a relational contract.Less
This chapter considers the way in which the idea of variation is formulated and treated within the law of personal work or employment contracts, and how the treatment of variation fits into the analysis of the way that the law of personal work or employment contracts functions and fulfills its task. It argues that the courts and tribunals have tended, in their approach to the variation of personal work or employment contracts, towards a greater understanding than had previously been displayed of the personal work or employment contract as a relational contract. This tendency challenges the analysis of the contract of employment as a relational contract.
MARK R. FREEDLAND FBA
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199298631
- eISBN:
- 9780191719400
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298631.003.0008
- Subject:
- Law, Company and Commercial Law
This chapter argues that the association between the unrestricted notice rule and the remedial approach to wrongful dismissal is crucial to the understanding of the whole of the law of termination of ...
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This chapter argues that the association between the unrestricted notice rule and the remedial approach to wrongful dismissal is crucial to the understanding of the whole of the law of termination of personal work contracts. The unrestricted notice rule and the remedial approach to wrongful dismissal have formed a nexus or complex of ideas, the combined impact of which upon the law of termination of personal work contracts has been allowed to become and to remain a dominant one. The chapter calls into question that domination, in the sense that it questions whether a body of law of termination of personal work contracts constructed around that central theoretical complex can adequately meet the various interpretative demands currently made upon it.Less
This chapter argues that the association between the unrestricted notice rule and the remedial approach to wrongful dismissal is crucial to the understanding of the whole of the law of termination of personal work contracts. The unrestricted notice rule and the remedial approach to wrongful dismissal have formed a nexus or complex of ideas, the combined impact of which upon the law of termination of personal work contracts has been allowed to become and to remain a dominant one. The chapter calls into question that domination, in the sense that it questions whether a body of law of termination of personal work contracts constructed around that central theoretical complex can adequately meet the various interpretative demands currently made upon it.
MARK R. FREEDLAND FBA
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199298631
- eISBN:
- 9780191719400
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298631.003.0001
- Subject:
- Law, Company and Commercial Law
This introductory chapter describes the scope of the book and the method of analysis used. It identifies the differences between the present volume and the original work. It also considers the ...
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This introductory chapter describes the scope of the book and the method of analysis used. It identifies the differences between the present volume and the original work. It also considers the changes in employment law in recent years, including the relationship between the common law of the contract of employment and statutory employment law.Less
This introductory chapter describes the scope of the book and the method of analysis used. It identifies the differences between the present volume and the original work. It also considers the changes in employment law in recent years, including the relationship between the common law of the contract of employment and statutory employment law.
Mark Freedland
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199661770
- eISBN:
- 9780191778612
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199661770.003.0015
- Subject:
- Law, Law of Obligations, Company and Commercial Law
This chapter discusses the private law of employment. It covers the definition, sources, and scope of the English private law of employment; the formation and content of work relationships; and the ...
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This chapter discusses the private law of employment. It covers the definition, sources, and scope of the English private law of employment; the formation and content of work relationships; and the termination and transfer of work relationships.Less
This chapter discusses the private law of employment. It covers the definition, sources, and scope of the English private law of employment; the formation and content of work relationships; and the termination and transfer of work relationships.
Mark Freedland
- Published in print:
- 2008
- Published Online:
- March 2012
- ISBN:
- 9780199541393
- eISBN:
- 9780191701221
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199541393.003.0013
- Subject:
- Law, Comparative Law
This chapter suggests that French employment law has recently entered an acute phase of rapid and probably quite fundamental change; it is felt that nothing less than un bouleversement (a complete ...
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This chapter suggests that French employment law has recently entered an acute phase of rapid and probably quite fundamental change; it is felt that nothing less than un bouleversement (a complete overturning of the existing order) is in the course of occurring, though not by any means solely engendered by the Presidential Election of 2007. Those embarking upon the study of employment law quickly come to realize that it is a highly political or politicized legal subject whose boundaries and purposes are more hotly contested than with most legal subjects. In this, French employment law is no different from that of the United Kingdom or other European countries. What is special to the French system is the extent to which one can express those difficulties by locating the subject in relation to the distinction between public law and private law.Less
This chapter suggests that French employment law has recently entered an acute phase of rapid and probably quite fundamental change; it is felt that nothing less than un bouleversement (a complete overturning of the existing order) is in the course of occurring, though not by any means solely engendered by the Presidential Election of 2007. Those embarking upon the study of employment law quickly come to realize that it is a highly political or politicized legal subject whose boundaries and purposes are more hotly contested than with most legal subjects. In this, French employment law is no different from that of the United Kingdom or other European countries. What is special to the French system is the extent to which one can express those difficulties by locating the subject in relation to the distinction between public law and private law.
Jill Rubery, Jill Earnshaw, and Mick Marchington
- Published in print:
- 2004
- Published Online:
- October 2011
- ISBN:
- 9780199262236
- eISBN:
- 9780191698859
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199262236.003.0003
- Subject:
- Business and Management, HRM / IR, Organization Studies
Debates about the changing nature of work and the prospects for the retention of the so-called standard employment relationship have become more widespread recently. This literature has focused to ...
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Debates about the changing nature of work and the prospects for the retention of the so-called standard employment relationship have become more widespread recently. This literature has focused to large extent on the fragmentation of work and increasing insecurity, often associated with the proliferation of ‘non-standard’ forms of employment. Growing numbers of pseudo self-employed workers, agency temps, zero hours contractors, and home-based teleworkers have all attracted attention to the issue of whether these forms of work fall within our understanding of the standard employment relationship; a bounded and long-term relationship between a single employer and an employee. These concerns within the literature are mirrored in the practice of employment law where increasing numbers of cases apply to situations where the definition of employee status is in some sense ambiguous, and employment regulations have increasingly been extended to include within their scope workers who fail the full test of employee status. So far, however, attention in both social science and employment law has focused mostly on the appropriateness of a narrow definition for the employee side of the employment relationship. This chapter argues there is a parallel need to question the employer side of this conceptual box. Employment change needs to be understood through the changing nature of organizations and inter-organizational relations.Less
Debates about the changing nature of work and the prospects for the retention of the so-called standard employment relationship have become more widespread recently. This literature has focused to large extent on the fragmentation of work and increasing insecurity, often associated with the proliferation of ‘non-standard’ forms of employment. Growing numbers of pseudo self-employed workers, agency temps, zero hours contractors, and home-based teleworkers have all attracted attention to the issue of whether these forms of work fall within our understanding of the standard employment relationship; a bounded and long-term relationship between a single employer and an employee. These concerns within the literature are mirrored in the practice of employment law where increasing numbers of cases apply to situations where the definition of employee status is in some sense ambiguous, and employment regulations have increasingly been extended to include within their scope workers who fail the full test of employee status. So far, however, attention in both social science and employment law has focused mostly on the appropriateness of a narrow definition for the employee side of the employment relationship. This chapter argues there is a parallel need to question the employer side of this conceptual box. Employment change needs to be understood through the changing nature of organizations and inter-organizational relations.
Paul Davies and Mark Freedland
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199217878
- eISBN:
- 9780191712326
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217878.003.0005
- Subject:
- Law, Employment Law
This chapter does three things. First, it compares the British approach to labour market regulation with the approaches of the OECD, on the one hand, and the European Community, on the other. Second, ...
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This chapter does three things. First, it compares the British approach to labour market regulation with the approaches of the OECD, on the one hand, and the European Community, on the other. Second, it develops a typology of regulatory strategies for implementing labour market regulation and analyses the major developments described in the book according to this typology. Third, it argues that the role for employment law under the approach adopted by ‘New Labour’ is seen as far more challenging and sophisticated than its role under either the traditional doctrine of collective laissez-faire or the deregulatory policies of its Conservative predecessors.Less
This chapter does three things. First, it compares the British approach to labour market regulation with the approaches of the OECD, on the one hand, and the European Community, on the other. Second, it develops a typology of regulatory strategies for implementing labour market regulation and analyses the major developments described in the book according to this typology. Third, it argues that the role for employment law under the approach adopted by ‘New Labour’ is seen as far more challenging and sophisticated than its role under either the traditional doctrine of collective laissez-faire or the deregulatory policies of its Conservative predecessors.
David Marsden
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294221
- eISBN:
- 9780191596612
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294220.003.0003
- Subject:
- Economics and Finance, Macro- and Monetary Economics
The diffusion of employment rules is analysed as an evolutionarily stable strategy. The primary mechanism is that once a particular rule begins to dominate in a sector, it makes sense for others to ...
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The diffusion of employment rules is analysed as an evolutionarily stable strategy. The primary mechanism is that once a particular rule begins to dominate in a sector, it makes sense for others to adopt it because it is widely understood by workers and managers. They can therefore spread in the absence of action by the state and collective bargaining—essential if we are to understand employment relations in ‘non‐union’ firms. However, such rules can be further reinforced by incorporation into collective agreements and employment law.Less
The diffusion of employment rules is analysed as an evolutionarily stable strategy. The primary mechanism is that once a particular rule begins to dominate in a sector, it makes sense for others to adopt it because it is widely understood by workers and managers. They can therefore spread in the absence of action by the state and collective bargaining—essential if we are to understand employment relations in ‘non‐union’ firms. However, such rules can be further reinforced by incorporation into collective agreements and employment law.
Nicole Busby
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199579020
- eISBN:
- 9780191725296
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579020.003.0005
- Subject:
- Law, Employment Law
This chapter considers the ‘fit’ of the proposed right to care within the pre-existing EU legal and policy framework. The appropriate body of law and policy aimed at reconciling personal and ...
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This chapter considers the ‘fit’ of the proposed right to care within the pre-existing EU legal and policy framework. The appropriate body of law and policy aimed at reconciling personal and professional life, which incorporates Treaty provisions, the Charter of Fundamental Rights, secondary legislation and soft law, although substantial, has not been the subject of a particularly smooth transition from closer economic co-operation to greater social integration. Having evolved in a reactive and incremental fashion, the relevant framework lacks the cohesion that might have resulted from a more comprehensive overarching strategy but, nonetheless, provides a more than adequate foundation for the progression of a right to care within European employment law. Interlaced with the analysis of the specific provisions of EU law, is a consideration of the Court of Justice's immense contribution in this respect.Less
This chapter considers the ‘fit’ of the proposed right to care within the pre-existing EU legal and policy framework. The appropriate body of law and policy aimed at reconciling personal and professional life, which incorporates Treaty provisions, the Charter of Fundamental Rights, secondary legislation and soft law, although substantial, has not been the subject of a particularly smooth transition from closer economic co-operation to greater social integration. Having evolved in a reactive and incremental fashion, the relevant framework lacks the cohesion that might have resulted from a more comprehensive overarching strategy but, nonetheless, provides a more than adequate foundation for the progression of a right to care within European employment law. Interlaced with the analysis of the specific provisions of EU law, is a consideration of the Court of Justice's immense contribution in this respect.
MARK R. FREEDLAND FBA
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199298631
- eISBN:
- 9780191719400
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298631.003.0011
- Subject:
- Law, Company and Commercial Law
This chapter argues that the expansion and restatement of the law of the contract of employment is a feasible and useful project. However, the complete execution of it would consist of an ...
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This chapter argues that the expansion and restatement of the law of the contract of employment is a feasible and useful project. However, the complete execution of it would consist of an authoritative codification of the law of personal work or employment contracts. If that larger project would be undertaken in the future, this would involve a heavy investment of creative energy on the part of those concerned with the theoretical and practical development of employment law. The chapter considers whether the preliminary work has indicated that this would be a sound investment both in practical and theoretical terms.Less
This chapter argues that the expansion and restatement of the law of the contract of employment is a feasible and useful project. However, the complete execution of it would consist of an authoritative codification of the law of personal work or employment contracts. If that larger project would be undertaken in the future, this would involve a heavy investment of creative energy on the part of those concerned with the theoretical and practical development of employment law. The chapter considers whether the preliminary work has indicated that this would be a sound investment both in practical and theoretical terms.
N. Scott Arnold
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195374964
- eISBN:
- 9780199871490
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195374964.003.0004
- Subject:
- Philosophy, Political Philosophy
This chapter identifies what is called “the modern liberal regulatory agenda,” which consists of the various regulatory regimes that modern liberals favor and classical liberals oppose. The first ...
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This chapter identifies what is called “the modern liberal regulatory agenda,” which consists of the various regulatory regimes that modern liberals favor and classical liberals oppose. The first section distinguishes economic from noneconomic regulation. The former includes rate regulation, regulation of entry and exit, anti-trust law, and wage and price controls. It is argued that the traditional disputes between modern liberals and classical liberals about economic regulation have become significantly attenuated over the past few decades, and the disagreements that remain are relatively narrow. By contrast, differences about noneconomic regulation remain profound. For this reason, the modern liberal regulatory agenda, as this chapter defines it, is about noneconomic regulation. That agenda is culled from the discussion in Chapter 3 about classical and modern liberal attitudes about restrictions on property rights. It covers three broad areas: the employment relation, health and safety regulation, and land use regulation.Less
This chapter identifies what is called “the modern liberal regulatory agenda,” which consists of the various regulatory regimes that modern liberals favor and classical liberals oppose. The first section distinguishes economic from noneconomic regulation. The former includes rate regulation, regulation of entry and exit, anti-trust law, and wage and price controls. It is argued that the traditional disputes between modern liberals and classical liberals about economic regulation have become significantly attenuated over the past few decades, and the disagreements that remain are relatively narrow. By contrast, differences about noneconomic regulation remain profound. For this reason, the modern liberal regulatory agenda, as this chapter defines it, is about noneconomic regulation. That agenda is culled from the discussion in Chapter 3 about classical and modern liberal attitudes about restrictions on property rights. It covers three broad areas: the employment relation, health and safety regulation, and land use regulation.
Lucy Vickers
- Published in print:
- 2002
- Published Online:
- March 2012
- ISBN:
- 9780198268307
- eISBN:
- 9780191683497
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268307.001.0001
- Subject:
- Law, Company and Commercial Law
This book examines employment law implications for employees who exercise the right to freedom of speech, and argues for increased rights to free speech in this context. Most obviously, employees ...
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This book examines employment law implications for employees who exercise the right to freedom of speech, and argues for increased rights to free speech in this context. Most obviously, employees need protection when speaking about immediate threats to health and safety or serious financial malpractice, but they also need protection when participating in debate on matters that are in the public interest. The book suggests that the rights of employees to participate in debate on matters of public interest are vital to a healthy democratic system. The book begins with a study of the philosophical basis for protecting the right to free speech and considers the extent to which that right should survive entry to the workplace. It establishes a principled basis upon which to determine the proper scope of the employee's right to free speech, taking into account the rights of both employers and employees. The impact of the Human Rights Act 1998 and the law under article 10 ECHR is assessed, together with the question of when the exercise of free speech by an employee breaches the contract of employment. The book contains a detailed treatment of the Public Interest Disclosure Act 1998, the rules on unfair dismissal, and the special position of employees working in the civil service, local government, and the NHS. Throughout the discussion of these issues, an assessment is made of the extent to which the current law complies with the proposed model for protection of employee speech.Less
This book examines employment law implications for employees who exercise the right to freedom of speech, and argues for increased rights to free speech in this context. Most obviously, employees need protection when speaking about immediate threats to health and safety or serious financial malpractice, but they also need protection when participating in debate on matters that are in the public interest. The book suggests that the rights of employees to participate in debate on matters of public interest are vital to a healthy democratic system. The book begins with a study of the philosophical basis for protecting the right to free speech and considers the extent to which that right should survive entry to the workplace. It establishes a principled basis upon which to determine the proper scope of the employee's right to free speech, taking into account the rights of both employers and employees. The impact of the Human Rights Act 1998 and the law under article 10 ECHR is assessed, together with the question of when the exercise of free speech by an employee breaches the contract of employment. The book contains a detailed treatment of the Public Interest Disclosure Act 1998, the rules on unfair dismissal, and the special position of employees working in the civil service, local government, and the NHS. Throughout the discussion of these issues, an assessment is made of the extent to which the current law complies with the proposed model for protection of employee speech.
N. Scott Arnold
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195374964
- eISBN:
- 9780199871490
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195374964.003.0006
- Subject:
- Philosophy, Political Philosophy
Conceiving of the ends of the modern liberal regulatory agenda as public goods is a more promising approach than it might first appear, but in the end, it too does not succeed. This chapter ...
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Conceiving of the ends of the modern liberal regulatory agenda as public goods is a more promising approach than it might first appear, but in the end, it too does not succeed. This chapter critically evaluates public goods arguments for the various ends or goals of the modern liberal regulatory agenda. It finds that they either fail as public goods, or do not create genuine public goods problems, or the public goods problems that do exist can be solved through a tying arrangement with the provision of private goods and thus do not require state action.Less
Conceiving of the ends of the modern liberal regulatory agenda as public goods is a more promising approach than it might first appear, but in the end, it too does not succeed. This chapter critically evaluates public goods arguments for the various ends or goals of the modern liberal regulatory agenda. It finds that they either fail as public goods, or do not create genuine public goods problems, or the public goods problems that do exist can be solved through a tying arrangement with the provision of private goods and thus do not require state action.
Ryoko Sakuraba
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199981212
- eISBN:
- 9780199358007
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199981212.003.0014
- Subject:
- Public Health and Epidemiology, Public Health
In Japan, positive discrimination toward people with disabilities exists. Public and private bodies are legally obliged to employ a certain number of people with disabilities (employment quotas). ...
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In Japan, positive discrimination toward people with disabilities exists. Public and private bodies are legally obliged to employ a certain number of people with disabilities (employment quotas). Several types of grants are also provided. On the other hand, the legal minimum wages may be reduced for them. These seemingly contradictory directions of policies are rooted in the idea that people with disabilities should be given employment opportunities to live their independent life. Apart from these “doctrines of labor contract,” a set of legal rules governing employment relations, provide people with disabilities with legal protection. For instance, when workers acquire disabilities during their course of employment, their employers are not legally allowed to dismiss them instantly. Antidisability discrimination law being introduced in the near future, the third approach, is expected to complement these measures by prohibiting disability discrimination at recruitment and hiring, as well as wage setting.Less
In Japan, positive discrimination toward people with disabilities exists. Public and private bodies are legally obliged to employ a certain number of people with disabilities (employment quotas). Several types of grants are also provided. On the other hand, the legal minimum wages may be reduced for them. These seemingly contradictory directions of policies are rooted in the idea that people with disabilities should be given employment opportunities to live their independent life. Apart from these “doctrines of labor contract,” a set of legal rules governing employment relations, provide people with disabilities with legal protection. For instance, when workers acquire disabilities during their course of employment, their employers are not legally allowed to dismiss them instantly. Antidisability discrimination law being introduced in the near future, the third approach, is expected to complement these measures by prohibiting disability discrimination at recruitment and hiring, as well as wage setting.
Christine Jolls
- Published in print:
- 2005
- Published Online:
- February 2013
- ISBN:
- 9780226261577
- eISBN:
- 9780226261812
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226261812.003.0005
- Subject:
- Economics and Finance, Public and Welfare
The American legal system affords a significant array of protections to employees. Although most workers in the United States do not enjoy a general right to be dismissed only for cause—a right ...
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The American legal system affords a significant array of protections to employees. Although most workers in the United States do not enjoy a general right to be dismissed only for cause—a right characteristic of many European countries and now of one American state, Montana—they benefit from a host of specific prohibitions on arbitrary or inappropriate behavior by employers. This chapter examines some of the distinctive public-interest legal organizations that exist to help to enforce the employment laws in the United States. It focuses on two broad categories of such organizations: national issue organizations and legal services organizations. The emphasis is on “enforcement” (or “implementation”) of existing laws, rather than “enactment” of new laws. It supports Paul Burstein's argument that litigation is an important element of social movement. The chapter also describes why the usual mechanism for protecting legal rights—retention of a private lawyer by the aggrieved party—is of limited effectiveness in the employment context.Less
The American legal system affords a significant array of protections to employees. Although most workers in the United States do not enjoy a general right to be dismissed only for cause—a right characteristic of many European countries and now of one American state, Montana—they benefit from a host of specific prohibitions on arbitrary or inappropriate behavior by employers. This chapter examines some of the distinctive public-interest legal organizations that exist to help to enforce the employment laws in the United States. It focuses on two broad categories of such organizations: national issue organizations and legal services organizations. The emphasis is on “enforcement” (or “implementation”) of existing laws, rather than “enactment” of new laws. It supports Paul Burstein's argument that litigation is an important element of social movement. The chapter also describes why the usual mechanism for protecting legal rights—retention of a private lawyer by the aggrieved party—is of limited effectiveness in the employment context.
Guy Davidov
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780198759034
- eISBN:
- 9780191818790
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198759034.001.0001
- Subject:
- Law, Employment Law
The book addresses the ‘crisis’ of labour law by taking a purposive approach. First, it articulates the goals of labour law. The general goals of labour law are examined and justified, at different ...
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The book addresses the ‘crisis’ of labour law by taking a purposive approach. First, it articulates the goals of labour law. The general goals of labour law are examined and justified, at different level of abstraction. This requires an in-depth normative discussion, including a consideration of critiques. Labour law can be understood as a solution to a ‘labour problem’, such as the vulnerabilities of democratic deficits and dependency. It can also be explained as aiming to advance various values: democracy, distributive justice, dignity, social inclusion, capabilities, and more. The goals of some specific labour laws—minimum wage, collective bargaining, unfair dismissals—are also examined. Next, the book proceeds to reconsider our means: to ask what we need to change or improve in the laws themselves in order to better advance the goals. Some of the proposed solutions are at the level of judicial interpretation (for example, how to interpret fundamental terms such ‘employer’ and ‘employee’), others at the legislative level. The book offers several examples for the way a purposive analysis should be performed in concrete cases. It also recommends legal structures (in particular, open-ended standards) that are suited for ongoing adaptation of the law, to ensure that our goals are advanced even when circumstances frequently change. Finally, in response to the crisis of enforcement in this field, which frustrates the achievement of labour law’s goals, several proposals to improve compliance and enforcement are considered.Less
The book addresses the ‘crisis’ of labour law by taking a purposive approach. First, it articulates the goals of labour law. The general goals of labour law are examined and justified, at different level of abstraction. This requires an in-depth normative discussion, including a consideration of critiques. Labour law can be understood as a solution to a ‘labour problem’, such as the vulnerabilities of democratic deficits and dependency. It can also be explained as aiming to advance various values: democracy, distributive justice, dignity, social inclusion, capabilities, and more. The goals of some specific labour laws—minimum wage, collective bargaining, unfair dismissals—are also examined. Next, the book proceeds to reconsider our means: to ask what we need to change or improve in the laws themselves in order to better advance the goals. Some of the proposed solutions are at the level of judicial interpretation (for example, how to interpret fundamental terms such ‘employer’ and ‘employee’), others at the legislative level. The book offers several examples for the way a purposive analysis should be performed in concrete cases. It also recommends legal structures (in particular, open-ended standards) that are suited for ongoing adaptation of the law, to ensure that our goals are advanced even when circumstances frequently change. Finally, in response to the crisis of enforcement in this field, which frustrates the achievement of labour law’s goals, several proposals to improve compliance and enforcement are considered.
