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Mark R Freedland
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Title: From the Contract of Employment to the Personal Work Contract
The Project
- 3-year project building on earlier work on the English law of the contract of employment and the personal employment contract.
- Expanded scope:
- European and comparative dimension
- Complete a process of expansion of my sphere of interest from the contract of employment to the larger, more comprehensive, category of the personal work contract
From the Contract of Employment to the Personal Work Contract
1. Trajectories and evolution of the analysis.
- The Contract of Employment (Clarendon, 1976): treatise on the law governing what seemed to be a single or unifiable contract type for the employment relations.
- New Millennium: extension of the category of contract from the contract
of employment strictly so called to include, roughly speaking, the wider
category of contracts with ‘workers’ (in the sense MWA and
WT Regs. 1998).
-> The Personal Employment Contract (OUP 2003)
From the Contract of Employment to the Personal Work Contract
-> Personal Employment Contract.
- middle ground between the ‘worker’ category to which I have just referred and the yet wider notion of all contracts personally to execute any work or labour (full name of the category used in the book: the personal work or employment contract.
-> In the new project: work with the full category of all contracts personally to execute any work or labour (the ‘personal work contract’ category) while moving from the unified analysis of the contract of employment to the recognition of a diverse though inter-linked family of personal work contracts.
From the Contract of Employment to the Personal Work Contract
2. From the binary divide to the family of personal work contracts.
- The shift from the contract of employment category to the personal
work contracts implies extending the frame of reference from dependent
workers to include partly or even wholly independent workers.
-> problematic situation of personal independent contractors - From the Contract of Employment to the Personal Work Contract
- New analytical method.
From the earlier unificatory methods that only recognised diversity within or at the margins of the contract of employment paradigm to…
… a method that looks at personal work contracts as a whole and conceives them as a family of contracts some of which fall into the sub-category of contracts of employment while others do not.
- The other ‘members’ of the family are important in their own right while this new holistic approach improves our understanding of the contract of employment.
From the Contract of Employment to the Personal Work Contract
3. Constructing the family of personal work contracts.
- Aim: understand what personal work contracts have in common and what differences there are between them
- Core argument: earlier work on the margins of the contract of employment can be used to construct a multi-dimensional picture of the family or group of personal work contracts
From the Contract of Employment to the Personal Work Contract
- Starting point in the analysis on the margins of the contract of
employment.
-> Enlargement of the personal scope of labour laws, also through the recognition and creation of new legal categories of working persons (parasubordinati, arbeitnehmerähnlichen Personen, ‘workers’) to whom some aspects of the labour and social legislation applies.
From the Contract of Employment to the Personal Work Contract
- More recently there have been attempts
-> to focus the attention on the employing organisation to find out whether workers can be approximated to the category of ‘employee’ when they are employed in a particular kind of complex and multilateral employing organisation, set-up, network, or arrangement (e.g. pupil barristers in Edmonds v Lawson).
From the Contract of Employment to the Personal Work Contract
- Time to introduce a third dimension:
->consider the nature or quality of the relationship as a distinctive third element in the analysis of the group or family of personal work contracts:
the MUTUALITY DIMENSION of analysis
From the Contract of Employment to the Personal Work Contract
The challenge is to use this three-dimensional analysis to construct our
new family of personal work contracts.
- Step one: abandon the analytical map of work relationships conceived as a concentric diagram developing around a core composed by the contract of employment.
- Step two: reshape this diagram as a three-dimensional openly constructed
cube
-> it becomes easier to recognise specific typologies within the contract of employment, and to accept typologies which transcend the boundaries of the contract of employment.
From the Contract of Employment to the Personal Work Contract
4. Meeting diverse regulatory needs.
- Argument: this three-dimensional analysis might help to refine and improve the legal regulation of the employment relationship
From the Contract of Employment to the Personal Work Contract
- Two main efficiency gains:
A. Help to improve the offering which the theorists of employment law
can make to the actual shaping of the positive law by legislators and
judges.
B. Help to equip both the theorists and the practitioners of employment
law to deal effectively with a wider range of personal work contracts
than they currently regard as being within their remit.
From the Contract of Employment to the Personal Work Contract
- A. Better legal regulation.
- Readier recognition of different varieties of personal work contract.
- Better understanding of the divergences between varieties of personal work contracts and of the consequences of those divergences for securing optimal regulation.
- Enhanced continuity of regulation as between personal work contracts and other contracts for services.
From the Contract of Employment to the Personal Work Contract
- A. Better legal regulation (i).
- Current problem: rigidification in the recognition of personal work
contracts as the basis of the entry conditions for statutory employment
rights.
- > the looser personal work contract framework, may encourage further judicial experimentation with the recognition of contractual arrangements which are more tolerant of greater degrees of autonomy on the part of the worker, constituted as between a complex employing organisation, and which do not have to be continuously binding as the contract of employment as currently construed.
From the Contract of Employment to the Personal Work Contract
- A. Better legal regulation (ii).
- Current problem: poor responsiveness to the convergences and divergences
between different kinds of personal work contracts.
_> Looser multidimensional framework may make it easier to recognise convergences between the regulation of contracts of employment and of other personal work contracts and help to develop those norms or modes of regulation in a way which is specially responsive to the needs of diverse personal work relationships.
From the Contract of Employment to the Personal Work Contract
A. Better legal regulation (ii).
Examples:
- Successful extension of rights contained in MWA 1998 and WT Reg 1998 to ‘worker’ category could be pursued further.
- Problems in defining working time for the purposes of the MWA 1998
occur both between contracts of employment and personal work contracts
in general
-> more responsive understanding by considering them within the larger framework of the whole personal work contracts family.
From the Contract of Employment to the Personal Work Contract
A. Better legal regulation (ii).
Other examples:
- Case-law doctrine: implied obligations as to trust and confidence (e.g. in Spring v Guardian Assurance Plc).
- obligations of trust and confidence as they attach to the worker rather than to the employing enterprise.
From the Contract of Employment to the Personal Work Contract
A. Better legal regulation (iii).
- Current problem: little continuity of regulation as between personal
work contracts and other contracts for services
-> the family of personal work contracts analysis, helps to bring out these actual or potential continuities by challenging the false perception that the regulations of these two types of contracts are wholly different matters and highlighting the growing convergences of the regulatory aims and methods.
From the Contract of Employment to the Personal Work Contract
5. Conclusion - enlarging the competences of employment lawyers.
- The handling by employment law practitioners of a wider range of personal work contracts.
- The handling by employment law practitioners of contracts for financial services or financial security associated with personal work relationships.
- The European comparative dimension of the project.
From the Contract of Employment to the Personal Work Contract
5. Conclusion - enlarging the competences of employment lawyers.
- The handling by employment law practitioners of a wider range of personal work contracts.
- The handling by employment law practitioners of contracts for financial services or financial security associated with personal work relationships.
- The European comparative dimension of the project.
From the Contract of Employment to the Personal Work Contract
5. Conclusion - enlarging the competences of employment lawyers.
- The handling by employment law practitioners of a wider range of personal work contracts.
- The handling by employment law practitioners of contracts for financial services or financial security associated with personal work relationships -> WAFICs
- The European comparative dimension of the project.
From the Contract of Employment to the Personal Work Contract
5. Conclusion - enlarging the competences of employment lawyers.
- The handling by employment law practitioners of a wider range of personal work contracts.
- The handling by employment law practitioners of contracts for financial services or financial security associated with personal work relationships ->WAFICs
- The European comparative dimension of the project.