Contrasting the Laws Governing the Variation of Commercial and Employment Contracts
Location:
Moot Court Room,
Old College
Date/time
Fri 29 March 2024
14:00-15:00
About the event
One of the great paradoxes of labour law is the patent incongruence between the static contractual framework that governs employment and the inherently dynamic character of the relationship itself. The tendency of the law to reduce the employment contract to ‘an initial treaty which remains in force until its termination [or] unless… modified by another equally decisive and definitive agreement’ generates a sizeable degree of artificiality into the governance of the relationship.[1] The managerial prerogative, the implied duty of the employee to obey reasonable orders and instructions and the law regulating the variation of the employment contract are each pressed into service by the common law to address the variety of tensions that emerge as a result of this dissonance.
It is to the latter issue that this paper will steer the discussion. In particular, the analysis will focus on the nature and requisite quality of the worker’s consent that is demanded by the law to give effect to a variation of the employment contract. This paper will provide a sketch of the orthodox rules of contract law on consent to a contractual variation and compare them with the extant rules applicable in relation to the law governing the contract of employment. The principal claim that I will make is that the broader the scope (of the legal criteria) for consent to variation to arise, the greater the irrelevance of, and the extent to which, the law of termination of the employment contract and the question of ‘fire and rehire’ will be crowded out of view. The insight is that the recognition of a more accepting or stricter notion of the legal conception of consent has significant repercussions for the law regulating employment contracts, giving rise to opposing policy outcomes.
[1] M. Freedland, The Personal Employment Contract (Oxford, OUP, 2003) 237.
About the speaker
Professor David Cabrelli - Professor of Labour Law
David Cabrelli joined the School of Law in June 2007 having lectured at the University of Dundee for four years. Prior to being appointed a lecturer, David practised commercial law and corporate law for six years. David's teaching and research interests lie in the fields of labour law/employment law, company law, commercial law and private law. He has published papers in numerous academic and practitioner journals in the field of labour/employment law, corporate law, commercial law and private law, together with a book on the Scots law of commercial agreements and student textbooks on employment law (now in its fourth edition) and Scots commercial law.
This event is in person only.