The legal construction of personal work relations / Mark Freedland, Nicola Kountouris.
2011
KJE2855 .F74 2011 (Map It)
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Title
The legal construction of personal work relations / Mark Freedland, Nicola Kountouris.
Published
Oxford : New York : Oxford University Press, [2011]
Copyright
©2011
Call Number
KJE2855 .F74 2011
ISBN
9780199551750 (cloth : alk. paper)
0199551758 (cloth : alk. paper)
0199551758 (cloth : alk. paper)
Description
xxiv, 476 pages : illustrations ; 24 cm.
System Control No.
(OCoLC)663438397
Bibliography, etc. Note
Includes bibliographical references (pages [447]-459) and index.
Record Appears in
Added Author
Table of Contents
Table of Cases
xvii
Table of Legislation
xxi
pt. I
THE LEGAL ANALYSIS OF PERSONAL WORK RELATIONS
Introduction: Evolution and Reformulation in the Legal Construction of Personal Work Relations
3
1.
The Legal Analysis of Personal Work Relations - Boundaries, Paradigms, and Legal Formats
11
Introduction
11
Section 1
The Relational Scope of Labour Law - An Initial Analysis
11
Section 2
The Personal Work Relation as the Domain of Labour Law
19
Section 3
A Functional Definition of the Personal Work Relation
28
A.
The Suggested Definition and its Function
29
B.
Multiple Interfaces and Contested Areas
34
Section 4
Aligning the Personal Work Relation with Existing Categories
36
A.
An Emerging Pattern in European Law?
37
B.
The Pattern Instantiated in English Law - and in Other European Legal Systems
42
2.
A European Comparative Approach to the Legal Construction of Personal Work Relations
44
Introduction
44
Section 1
Functions and Perspectives
44
Section 2
Methodology
48
Section 3
Sources of Regulation and Hierarchies of Norms
58
A.
Introduction
58
B.
Hierarchies of Sources as Identifiers of Labour Law Systems
62
C.
English Law and its Inherently Non-hierarchical System of Sources
67
Section 4
Programme and Outcome
74
pt. II
THE PERSONAL WORK RELATION AS A CONTRACT
3.
The Legal Construction of Personal Work Relations as Contracts
83
Introduction
83
Section 1
Contractuality, Individuality, and Layered Regulation
85
A.
The Law of Personal Work Contracts as Regulatory Modelling
86
B.
Individuality and Contractuality in the Law of Personal Work Contracts
89
C.
The Law of Personal Work Contracts as Layered Regulation
96
Section 2
The Personal Work Contract as a Definitional Category and the Place of the Contract of Employment within that Category
104
A.
The Problems of the Binary Divide
104
B.
A Comparative Assessment of the Binary Divide
112
Section 3
The Contractual Construction of Personal Work Relations - Towards a Multidimensional Analysis
120
4.
The Formation and Structure of Contracts of Employment
129
Introduction
129
Section 1
The Conditions of Formation of Contracts of Employment
130
A.
The Nature and Functions of Conditions of Formation
130
B.
Employment-Specific Contractual Intention
134
Section 2
Other Factors in the Making of Contracts of Employment
147
A.
Illegality and Other Vitiating Factors
147
B.
Formality and Information
153
Section 3
The Personal and Organizational Structure of Contracts of Employment
157
A.
The Bilaterality, Individuality, and Personality of Contracts of Employment
158
B.
Organizational Structure
161
Section 4
The Economic Structure of Contracts of Employment
167
A.
A Two-Level Economic Structure?
168
B.
Duration, Continuity, and the Provision of Remunerated Work
171
5.
The Content and Performance of Contracts of Employment
177
Introduction
177
Section 1
Implied Terms and Guiding Principles
180
A.
Implied Terms and the Regulation of Content and Performance
180
B.
Fidelity, Obedience, and the Protection of the Interests of the Employer or Employing Enterprise
188
C.
Care and the Protection of the Welfare of the Worker
191
D.
Towards a Principle of Mutual Trust, Good Faith, and Fair Dealing?
194
Section 2
Performance
199
A.
Integrated and Dis-integrated Approaches to the Performance of Contracts of Employment
199
B.
Performance and the Wage-Work Bargain
201
C.
Performance and the Continuity of Remuneration
203
Section 3
Variation
206
A.
The Contested Approach to Variation in English Employment Law
207
B.
Variation From a Comparative Perspective
208
Section 4
Suspension
213
A.
Approaches to the Regulation of Suspension, and the Intersection with Termination
213
B.
The Regulation of Suspension in Specific Circumstances
217
6.
The Termination and Transformation of Employment Contracts
222
Introduction
222
Section 1
The Role of Contract Law in the Regulation of Termination of Employment
222
A.
Integrated and Dis-integrated Systems of Legal Regulation of Termination of Employment
223
B.
Regulation and Integration in the Contractual Construction of the Termination of Employment
224
Section 2
The Duration and Termination of Employment Contracts - a European Regulatory Spectrum
231
A.
Regulating the Time of Contractual Termination
231
B.
Specifying the Grounds and Procedures for Contractual Termination
239
Section 3
English Law as a Case-Study in the Dual Regulation of Termination of Employment
241
A.
The Separation Between Contractually Wrongful Dismissal and Unfair Dismissal in English Law
242
B.
The Low Protection of Job Security in the English Law of Employment Contracts
245
Section 4
The Construction of Transformations in Contractual Employment Relations
251
A.
Transformations in the Identity of the Employer or in the Ownership or Control of the Employing Enterprise
251
B.
Other Transformations
259
pt. III
THE PERSONAL WORK RELATION AS A LEGAL NEXUS
7.
Personal Work Contracts Other Than the Contract of Employment
267
Introduction
267
Section 1
The Legal Categorization of Personal Work Contracts Other Than the Contract of Employment
267
A.
The Category Identified
267
B.
The Traditional View of Other Personal Work Contracts as Contracts for Services
269
C.
Other Personal Work Contracts as a Dual Category
276
D.
Other Personal Work Contracts as a Family of Contracts
284
Section 2
Formation and Structure
290
A.
Paradigm and Variety in Structure - the Personal Task Contract as a Paradigm for Other Personal Work Contracts?
290
B.
Intention, Formality, and Legality in Formation
296
Section 3
Performance and Termination
300
A.
Performance and Content
300
B.
Termination and Transformation
302
Section 4
The Narrowness of the Contractual Perspective
303
A.
The Individual Independent Worker
305
B.
Personal Work in a Joint Enterprise
306
8.
Contract, Relation, and Nexus in the Legal Construction of Personal Work Relations
309
Introduction
309
Section 1
The Personal Work Relation and the Personal Work Nexus as Generic Concepts
310
A.
The Shortcomings of the Contractual Analysis of Personal Work Relations
310
B.
Concepts for a Different Method of Analysis
313
Section 2
The Personal Work Relation as a Complex Network or Nexus
315
A.
The Personal Work Nexus as the Internal Structure of the Personal Work Relation
316
B.
Contract and Relationship Within the Personal Work Nexus
322
Section 3
The Legal Connections of Which the Personal Work Nexus is Composed
323
A.
The Nature of These Legal Connections
324
B.
Primary and Secondary Legal Connections
327
Section 4
The Personal Work Nexus and the Personal Work Relation
330
A.
A Theoretical Perspective
330
B.
A Comparative Perspective
332
9.
The Personal Work Profile and the Idea of Personality in Work
338
Introduction
338
Section 1
The Idea of the Personal Work Profile
340
A.
The Personal Work Profile and the Personal Work Situation
340
B.
The Personal Work Profile and the Working Life or Career
342
Section 2
A Critical Taxonomy of Personal Work Relations
344
A.
A Tri-Polar Starting Point
344
B.
A Scheme of Empirical Categories
347
C.
The Legal Construction of the Empirical Categories
349
Section 3
The Personal Work Profile in the Taxonomy and Regulation of Personal Work Relations
358
A.
The Personal Work Profile and the Idea of Normative Characterization
358
B.
The Personal Work Profile as a Regulatory Framework
364
Section 4
The Idea of Personality in Work
369
A.
Personality in Work as a Set of Values
370
B.
The Component Values of Personality in Work: Dignity, Capability, and Stability in Work
371
pt. IV
THE PERSONAL WORK RELATION IN EUROPEAN LAW
10.
The Legal Construction of Personal Work Relations and the Role of European Law
385
Introduction
385
Section 1
European Law and the Fragmentation of Personal Work Regulation
386
A.
The Denormalization of Personal Work Arrangements
386
B.
The Fragmentation of EU Employment Law With Regard to Taxonomy
390
C.
The Normative Patchiness of EU Employment Law
396
Section 2
A European Legal Framework for Personal Work Relations
399
A.
The Objectives and Main Components of a European Legal Framework for Personal Work Relations
400
B.
The Methodology of a European Legal Framework for Personal Work Relations
404
C.
The Personal Work Relation as the Framing Concept for a European Legal Framework for Personal Work Relations
405
D.
Multilayered Regulation and the Idea of EU Regulatory Layers
410
Section 3
EU Regulatory Layers as the Basis of a European Legal Framework for Personal Work Relations
413
A.
The Complex Nature of EU Regulatory Layers
414
B.
The Relational Aspect of EU Regulatory Layers
417
C.
EU Regulatory Layers - Some Key Examples
421
Section 4
A European Legal Framework for Personal Work Relations: Prospects and Problems
428
A.
Prospects
428
B.
Problems
430
Conclusion: Mutualization and Demutualization in the Legal Construction of Personal Work Relations
433
Bibliography
447
Index
461