Mark Freedland

The Legal Construction of Personal Work Relations

INTRODUCTION: EVOLUTION AND RE-FORMULATION IN THE LEGAL CONSTRUCTION OF PERSONAL WORK RELATIONS PART I: THE LEGAL ANALYSIS OF PERSONAL WORK RELATIONS 1. The Legal Analysis of Personal Work Relations - Boundaries, Paradigms, and Legal Formats 2. A European Comparative Approach to the Legal Construction of Personal Work Relations PART II: THE PERSONAL WORK RELATION AS A CONTRACT 3. The Legal Construction of Personal Work Relations as Contracts 4. The Formation and Structure of Contracts of Employment 5. The Content and Performance of Contracts of Employment 6. The Termination and Transformation of Contracts of Employment 7. Personal Work Contracts other than the Contract of Employment PART III: THE PERSONAL WORK RELATION AS A LEGAL NEXUS 8. Contract, Relation, and Nexis in the Legal Construction of Personal Work Relations 9. The Personal Work Profile and the Idea of Personality in Work PART IV: THE PERSONAL WORK PROFILE AND THE IDEA OF PERSONALITY IN WORK 10. The Legal Construction of Personal Work Relations and the Role of EU Law CONCLUSION: THE PERSONAL WORK RELATION IN EUROPEAN LABOUR LAW - CHALLENGES AND AFFIRMATIONS

Labour legislation and public policy : a contemporary history

Collective laissez-faire full employment and the postwar consensus 1945-1951 the easy decade 1951-1961 modernization and experiments with planning 1961-1969 industrial justice and the individual worker 1968-1974 the end of agreement - collective labour law 1964-1970 the failed revolution - collective labour law 1970-1974 the social contract 1974-1979 reducing the power of trade unions 1979-1990 restructuring the labour economy 1979-1990 conclusion - a post-war perspective.

Employment policy and the regulation of part-time work in the European Union : a comparative analysis

List of figures and tables Preface List of abbreviations Notes on contributors Part I: 1. New discourses in labour law: part-time work and the paradigm of flexibility Silvana Sciarra 2. The European employment strategy and the regulation of part-time work Diamond Ashiagbor 3. The role of EU employment law and policy in the de-marginalisation of part-time work: a study in the interaction between EU regulation and member state regulation Paul Davies and Mark Freedland Part II: 4. France: no longer an employment policy tool Sylvaine Laulom 5. Germany: a bone of contention Maximilian Fuchs 6. Italy: adaptable employment and private autonomy in the Italian part-time reform Antonio Lo Faro 7. The Netherlands: from atypicality to typicality Jelle Visser, Ton Wilthagen, Ronald Beltzer and Esther Van Der Putte 8. Spain: the difficulty of marrying flexibility with security Fernando Valdes Dal-Re 9. Sweden: welfare or unfair? Ronnie Eklund 10. The United Kingdom: how is EU governance transformative? Claire Kilpatrick and Mark Freedland.

The Subjects of Labor Law: 'Employees' and Other Workers

Who is an employee? Which workers ought to be covered by the protective panoply offered by labor law? These are questions with a long history. In the current contribution we consider them from a comparative perspective. Our aim is to highlight similarities and differences between different legal systems. This cross-national analysis can in turn assist the national analyses. Understanding how others have been approaching the same problem can help us better understand our own legal system, including in terms of its historical development and in identifying shortcoming, inconsistencies and hidden assumptions. Understanding to what extent the problem and solutions are universal can also assist us in identifying the normative foundations behind the law.We start with a brief overview of the tests used in different countries to decide if one is an employee (and covered by labor law), showing some points of diversity but for the most part significant similarities, with a trend towards greater convergence. We then turn to examine some relatively recent developments in different legal systems through three prisms. First we discuss the response in different countries to employers’ evasion attempts. We show how in some systems courts and legislatures remain inactive in the face of evasion, and the stagnation of the law leaves room to massive misclassification of employees as independent contractors. In other countries, on the other hand, creative solutions have been used to contain or minimize this problem. Next we consider the dialogue between the judiciary and the legislature in determining who is an employee. We show how in some countries, judicial approaches to the problem have triggered a legislative response, while in others the legislature remains silent, possibly to signal approval or simply out of disinterest. Finally, we examine the breaking of the binary divide between employees and independent contractors. We show that a third (intermediate) category has been added in an increasing number of countries, as a response to similar problems in classifying workers who share only some of the characteristics of employees. In the conclusion we return to reflect on the issues of diversity vs. convergence, in light of the developments discussed in the previous parts.

The United Kingdom: how is EU governance transformative?

This chapter uses the example of part-time work in the UK in order to investigate the transformative nature of EU governance. In line with the other country analyses, we focus on three regulatory sources: EU gender equality law, the 1997 Part-time Work Framework Agreement and Directive (hereafter Part-time Directive) and Title VIII EC Treaty dealing with employment policy. Given the production at EU level of these regulatory sources concerning part-time work, and the special, well-known, characteristics of the EU as a legal and political entity, rather than focussing on whether EU governance can be transformative, we consider how, and under what circumstances, it can transform a given policy area. Therefore, our interest does not primarily lie in measuring outcomes by, for instance, enquiring whether the lot of part-time workers in the UK has been improved as a result of EU intervention. It lies instead in analysing the distinctive spaces created by various modes of governance with regard to the regulatory and social profile of part-time work in the UK. Of course, these two issues – processes and outcomes – cannot be neatly separated since one important measure of transformative capacity is the magnitude of the change provoked, or influence brought to bear, by a given EU intervention. Notwithstanding that, it remains important to note that we are interested in outcomes from a perspective which is principally interested in the processes of transformation.

Labour regulation and the economic crisis in Europe: challenges, responses and prospects: Policy, Practice and Institutions

The 2008 financial crisis marked the beginning of a prolonged and ongoing period of extreme economic turbulence that has created multiple challenges for both governments and national systems of labour administration. Difficult economic conditions are encouraging a reevaluation of established policies and institutions in the areas of labour, employment, social protection and industrial relations. This book analyses recent reforms in labour administration and national labour policies, charting their development and discussing the challenges and opportunities faced by governments, ministries of labour, labour inspectors, employer organisations and trade unions.

Employees, workers and the ‘sharing economy’ Changing practices and changing concepts in The United Kingdom

Recent years have seen a radical shift in the practice and profile of the labour economy in the United Kingdom consisting in the considerable growth of the so-called ‘Sharing Economy’ or ‘Gig Economy’, better identified as the ‘On-demand Economy’. From that starting point, it is argued that a corresponding change seems to have occurred in the set of concepts which the labour/ employment law of the United Kingdom uses to analyse and to characterize the work relations and work contracts which are created, made, and operated within this rapidly growing sector of the labour market. Two recent high-profile Employment Tribunal decisions in the Uber and Citysprint cases, and a decision of the Court of Appeal in this same area in the Pimlico Plumbers case have served to confirm the legislative creation of a third intermediate category of ‘workers’ who benefit from a set of employment rights which is more limited than that enjoyed by employees but which is nevertheless very important. This crystallization of labour law’s newly tripartite taxonomy of work relations has occurred very largely in the context of the on-demand economy, and is beneficial to those located in that sector. This is, however, a rather fragile conceptual structure.

Industrial Relations and Labour Law

In this article, it is argued that Bill McCarthys work in the field of industrial relations brought him into a profound engagement with labour law, despite his initial commitment to the credo of ‘collective laissez-faire’ with its assertion of a minimal role for labour law in that field. His approach to the post-1970 developments in labour law was an essentially pragmatic and empirical one, but he maintained the ideals of social justice and collective solidarity and continued to suggest ways in which labour law could best be harnessed to the service of those ideals.

Regulating for Decent Work and the Legal Construction of Personal Work Relations

The continuing programme of discussion of ‘regulating for decent work’1 offers an opportunity to describe some work which I have been doing in recent years on the topic of the ‘legal construction of personal work relations’ in collaboration with Nicola Kountouris (Freedland and Kountouris 2011), and to suggest how that work might make a small contribution to a wide-ranging discussion of the idea of ‘regulating for decent work’. This imposes a large responsibility to consider in depth the role which the ‘legal construction of personal work relations’ has to play in the continuing drama of ‘regulating for decent work’. If I attempt to do that in the course of this chapter, the attempt is coupled with a reminder that the ‘legal construction of personal work relations’ is not and cannot be any more than a minor aspect of the whole business of ‘regulating for decent work’.

Injunctions, Cyanamid, and the Corrosion of the Right to Strike in the UK

This paper critically reviews a number of recent English court decisions on the award of interim injunctions against strikes, granted on the grounds of breach of various procedural requirements contained in Part V of the Trade Union and Labour Relations (Consolidation) Act 1992. It is argued that the jurisprudential approach followed by English courts is at odds with the emerging human rights nature of the right to strike, as developed by the European Court of Human Rights (ECtHR). The paper calls domestic judges to abandon the traditional, American Cyanamid-based, test typically used in awarding interlocutory injunctions in industrial action cases, in favour of a more human rights-attuned ‘proportionality test’.