The Personal Employment Contract

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ISBN: 9780199298631 | 0199298637
Cover: Paperback
Copyright: 2/16/2006

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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.

Table of Cases

xxi

Tables of Legislation

xxxvii

Abbreviations

xliii

INTRODUCTION: FROM THE CONTRACT OF EMPLOYMENT TO THE PERSONAL EMPLOYMENT CONTRACT—EXPANSION AND RESTATEMENT

(12)

CHAPTER 1: DEFINITION AND PERSONAL STRUCTURE

(46)

INTRODUCTION

(1)

SECTION 1: THE PROBLEMS OF DEFINITION DISTINCTION AND INCLUSION IN THE LAW OF EMPLOYMENT CONTRACTS

(12)

A. The False Unity of the Law of the Contract of Employment

(3)

B. The False Duality between the Contract of Employment and Other Personal Work or Employment Contracts

(4)

C. The Recent Growth of Multiple Categories of Contract in Employment Legislation

(4)

SECTION 2: THE PERSONAL EMPLOYMENT CONTRACT AS A DEFINITIONAL CATEGORY

(10)

A. The Personal Employment Contract Defined

(3)

B. The Two Subcategories of the Contract of Employment and the Semi-Dependent Worker's Contract

(3)

C. The Personal Employment Contract and the Problems of Complex Employment Relationships

(3)

SECTION 3: CONTRACTING PARTIES AND THE INSTITUTIONAL ORGANIZATION OF WORK

(16)

A. The Personal and Bilateral View of Contractual Employment Relations

(4)

B. The Contracting Parties and the Organization of Employment between Employing Entities

(5)

C. The Contracting Parties and the Organization of Employment within the Employing Entity

(7)

CONCLUSION

(7)

CHAPTER 2: FORMATION AND INTERNAL STRUCTURE

(54)

INTRODUCTION

(1)

SECTION 1: THE CONDITIONS OF FORMATION OF PERSONAL EMPLOYMENT CONTRACTS

(26)

A. The Role or Function of the Conditions of Formation

(1)

B. Contractual Intention and the Formation of Personal Employment Contracts

(15)

C. Legality and the Informal Economy

(4)

D. Restraint of Trade and Economic Freedom in the Formation of Personal Employment Contracts

(3)

E. Formality and Information in the Making of Personal Employment Contracts

(4)

SECTION 2: INTERNAL STRUCTURE AND CONTINUITY

(19)

A. The Two-Level Structure of Personal Employment Contracts

(4)

B. Work and Remuneration in the Structure of Personal Employment Contracts

(6)

C. Contractual Continuity of Employment

(7)

CONCLUSION

105

(8)

CHAPTER 3: CONTENT AND CONSTRUCTION

113

(84)

INTRODUCTION

113

(2)

SECTION 1: IMPLIED TERMS AND GUIDING PRINCIPLES

115

(14)

SECTION 2: THE PRINCIPLE OF MUTUALITY OR RECIPROCITY

129

(11)

A. Mutuality or Reciprocity as a Guiding Principle

129

(3)

B. Provision of Work

132

(4)

C. Mutuality Allocation of Risk and Control of Discretion

136

(4)

SECTION 3: CARE AND CO-OPERATION

140

(14)

A. As Between Employing Entities and Employees

141

(10)

B. As Between Employing Entities and Semi-Dependent Workers

151

(3)

SECTION 4: TRUST AND CONFIDENCE

154

(17)

A. As Between Employing Entities and Employees

155

(13)

B. As Between Employing Entities and Semi-Dependent Workers

168

(3)

SECTION 5: LOYALTY AND FREEDOM OF ECONOMIC ACTIVITY

171

(15)

A. The General Principle

171

(2)

B. Fidelity

173

(5)

C. Restraint of Trade

178

(8)

SECTION 6: FAIR MANAGEMENT AND PERFORMANCE

186

(9)

A. An Overarching Principle

186

(3)

B. The Principle Located with Regard to Other Fairness Principles

189

(3)

C. Fair Management and Performance in the Law of Personal Work or Employment Contracts

192

(3)

CONCLUSION

195

(2)

CHAPTER 4: PERFORMANCE AND BREACH

197

(38)

INTRODUCTION

197

(3)

SECTION 1: PERFORMANCE, DIVISIBILITY, AND DEDUCTION

200

(12)

A. Entire and Divisible Contracts and Substantial Performance

201

(3)

B. Fines, Forfeitures, Damages, and Deductions

204

(4)

C. Equitable Control upon Penalties

208

(1)

D. The Statutory Control of Deduction From Wages—A Trigger for Contractual Development?

209

(3)

SECTION 2: PERFORMANCE, WORK, AND SERVICE

212

(20)

A. Performance and Remuneration during Sickness

212

(7)

B. Performance, Remuneration, and Industrial Action

219

(4)

C. Towards a Principle of Fair Management and Performance with Regard to Remuneration and Benefits

223

(7)

D. Fair Management and Performance with Regard to Pension Provision

230

(2)

CONCLUSION

232

(3)

CHAPTER 5: VARIATION

235

(56)

INTRODUCTION

235

(5)

SECTION 1: VARIATION WITHIN THE ORIGINAL CONTRACT

240

(12)

A. Variation and Contractual Flexibility

240

(10)

B. An Implied Provision for Variation by Proper Notice

250

(2)

SECTION 2: VARIATION BY SUBSEQUENT AGREEMENT

252

(9)

A. The Requirement of Consideration

253

(2)

B. Waiver or Estoppel

255

(2)

C. The Requirement of Consent and Variation by Conduct

257

(4)

SECTION 3: VARIATION DISTINGUISHED FROM TERMINATION AND REPLACEMENT

261

(7)

A. Consensual Variation as Termination and Replacement

262

(5)

B. Imposed Variation as Termination and Replacement

267

(1)

SECTION 4: A RELATIONAL APPROACH TO VARIATION

268

(21)

A. A Relational Approach and Implicit Contracts

268

(3)

B. An Evolutionary and Evaluative Approach to Specific Terms

271

(5)

C. An Obligation of Fair Management and Performance with Regard to Variation

276

(4)

D. Fair Management and Performance, Variation, and Collective Bargaining

280

(6)

E. Variation, Flexibility, and Competitiveness

286

(3)

CONCLUSION

289

(2)

CHAPTER 6: LAWFUL TERMINATION BY THE EMPLOYING ENTITY

291

(58)

INTRODUCTION

291

(1)

SECTION 1: TERMINATION, DISMISSAL, AND LEGALITY

292

(13)

A. Termination, Legality, Remedial Law, and Regulatory Interpretation

292

(2)

B. Lawful Termination by the Employing Entity, Duration, and Job Security

294

(4)

C. Lawfulness in Termination—A Theory of Adjudication

298

(7)

SECTION 2: LAWFUL TERMINATION BY NOTICE, NON-RENEWAL, OR PAYMENT IN LIEU OF NOTICE

305

(17)

A. Notice, Non-Renewal, and Contractual Duration

305

(4)

B. Notice, Non-Renewal, and Implicit Contracts

309

(9)

C. Payment in Lieu of Notice as a Power of Lawful Termination

318

(4)

SECTION 3: THE POWER OF SUMMARY TERMINATION BY THE EMPLOYING ENTITY

322

(7)

SECTION 4: CONTROLS UPON POWERS OF TERMINATION BY THE EMPLOYING ENTITY

329

(16)

A. The Unlimited Power of Termination by Notice

329

(3)

B. The Challenge from Public Law Principles

332

(6)

C. The Challenge from the Law of Unfair Dismissal

338

(6)

D. The Possible Impact of the Dispute Resolution Provisions of the Employment Act 2002

344

(1)

CONCLUSION

345

(4)

CHAPTER 7: WRONGFUL TERMINATION BY THE EMPLOYING ENTITY

349

(48)

INTRODUCTION

349

(1)

SECTION 1: THE LAW OF WRONGFUL DISMISSAL AS A NEXUS OF IDEAS

350

(3)

SECTION 2: THE WRONGFULNESS/DAMAGES COMPLEX

353

(15)

A The Wrongfulness/Damages Complex Explained

353

(2)

B. The Sources and Scope of the Limited Damages Rule

355

(13)

SECTION 3: THE SPECIFIC REMEDIES/TERMINATION COMPLEX

368

(16)

A. The Specific Remedies/Termination Complex Presented

368

(1)

B. Injunctions and Other Specific Remedies

369

(7)

C. Terminatory Effectiveness, Elective Theory, and Notional Prolongation

376

(8)

SECTION 4: TOWARDS A COHERENT APPROACH TO WRONGFUL TERMINATION BY THE EMPLOYING ENTITY

384

(13)

A. The Difficulties of a Coherent Approach

384

(1)

B. Repudiation, Dismissal, and Constructive Dismissal

385

(3)

C. The Situation where the Employing Entity Has an Express Power of Termination by Payment in Lieu of Notice

388

(2)

D. The Effect of Wrongful Dismissal upon Post-Employment Obligations

390

(3)

E. A Mutual Duty of Efficient Dispute Resolution

393

(2)

CONCLUSION

395

(2)

CHAPTER 8: TERMINATION BY OTHER MEANS

397

(62)

INTRODUCTION

397

(1)

SECTION 1: A GENERAL THEORY OF TERMINATION AND TRANSFORMATION OF PERSONAL WORK CONTRACTS

398

(12)

A. The Difficulties about Formulating a General Theory

398

(1)

B. Multiple Vocabularies of Termination and Transformation

399

(6)

C. The Existence and Identity of the Personal Employment Contract

405

(2)

D. A General Analysis of the Termination and Transformation of Personal Employment Contracts

407

(3)

SECTION 2: UNILATERAL TERMINATION

410

(15)

A. Unilateral Termination by the Employing Entity

411

(3)

B. Unilateral Termination by the Worker

414

(4)

C. Issues of Balance and Allocation

418

(7)

SECTION 3: BILATERAL TERMINATION

425

(14)

A. The Category of Bilateral Termination Explained and Subdivided

426

(3)

B. Bilateral Termination by Ad Hoc Agreement

429

(3)

C. Bilateral Termination under a Pre-termination Agreement

432

(4)

D. Bilateral Termination and the Exclusion of Statutory Rights

436

(3)

SECTION 4: NON-LATERAL TERMINATION

439

(17)

A. Termination by or as the Result of Frustration

440

(9)

B. Termination by Operation of Law as the Result of Worker-Related Occurrences

449

(2)

C. Termination by Operation of Law Resulting from Occurrences Related to the Employing Entity

451

(5)

CONCLUSION

456

(3)

CHAPTER 9: TRANSFORMATION AND TRANSFER

459

(58)

INTRODUCTION

459

(1)

SECTION 1: TRANSFORMATION, TERMINATION, AND THE ELASTICITY OF THE PERSONAL EMPLOYMENT CONTRACT

459

(5)

SECTION 2: SUSPENSION

464

(27)

A. The Idea of Contractual Suspension

464

(3)

B. Disciplinary, Precautionary, or Appellate Suspension

467

(7)

C. Lay-off Without Pay or Unpaid Suspension for Managerial Reasons

474

(6)

D. Suspension and Industrial Action

480

(2)

E. Suspension during Sickness of Worker

482

(2)

F. Managerial Suspension with Pay and 'Garden Leave'

484

(7)

SECTION 3: TRANSFORMATION OF PARTIES (1) PARTIAL TRANSFORMATION

491

(14)

A. Transformation of Parties and Contractual Elasticity

491

(9)

B. Transformation of the Employing Party and Change in Composition of Employing Partnerships

500

(1)

C. Transformation of the Employing Party during Corporate Insolvency or Restructuring

501

(4)

SECTION 4: TRANSFORMATION OF PARTIES (2) TOTAL TRANSFER UNDER THE TUPE REGULATIONS

505

(9)

A. The TUPE Regulations, the Acquired Rights Directive, and the Law concerning Contracts of Employment

506

(3)

B. The Incidence and Effects of Contractual Transfer under the TUPE Regulations

509

(5)

CONCLUSION

514

(3)

CONCLUSION: TOWARDS A CODIFICATION OF PERSONAL WORK CONTRACTS—RELATION AND CONTRACT IN EMPLOYMENT LAW

517

(8)

Bibliography

525

(4)

Index

529

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The Personal Employment Contract

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