Jeremias Prassl
- Published in print:
- 2015
- Published Online:
- June 2015
- ISBN:
- 9780198735533
- eISBN:
- 9780191799648
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198735533.001.0001
- Subject:
- Law, Employment Law, Company and Commercial Law
This work develops a functional concept of the employer in the hope of overcoming the theoretical and practical problems arising from the ascription of responsibility in fragmented employment ...
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This work develops a functional concept of the employer in the hope of overcoming the theoretical and practical problems arising from the ascription of responsibility in fragmented employment settings. A first part analyses two conflicting strands in the received concept of the employer, simultaneously identified as a single party to a bilateral contract and defined through the exercise of a range of employer functions. As a result of this tension, full employment law coverage is restricted to a narrow paradigm scenario where a single legal entity exercises all employer functions, and fails to grapple with the rise of complex work arrangements, from temporary agency work to corporate groups and Private Equity investors. The second part illustrates the practical implications of these developments: regulatory obligations are placed on inappropriate entities, and workers may find themselves without recourse to employment law protection. A subsequent chapter compares this situation with German law, where a sophisticated apparatus has been developed to regulate employment in corporate groups. The final part reconceptualizes the employer, defining it as the entity, or combination of entities, exercising functions regulated in a particular domain of employment law. Each of the two strands of the received concept is addressed in turn to demonstrate how this openly multi-functional approach overcomes the rigidities of the current concept without abandoning an underlying unitary definition. As a result, employment law obligations fasten on the entity, or combination of entities, exercising the relevant employer functions, regardless of the formal legal organization of the enterprise in question.Less
This work develops a functional concept of the employer in the hope of overcoming the theoretical and practical problems arising from the ascription of responsibility in fragmented employment settings. A first part analyses two conflicting strands in the received concept of the employer, simultaneously identified as a single party to a bilateral contract and defined through the exercise of a range of employer functions. As a result of this tension, full employment law coverage is restricted to a narrow paradigm scenario where a single legal entity exercises all employer functions, and fails to grapple with the rise of complex work arrangements, from temporary agency work to corporate groups and Private Equity investors. The second part illustrates the practical implications of these developments: regulatory obligations are placed on inappropriate entities, and workers may find themselves without recourse to employment law protection. A subsequent chapter compares this situation with German law, where a sophisticated apparatus has been developed to regulate employment in corporate groups. The final part reconceptualizes the employer, defining it as the entity, or combination of entities, exercising functions regulated in a particular domain of employment law. Each of the two strands of the received concept is addressed in turn to demonstrate how this openly multi-functional approach overcomes the rigidities of the current concept without abandoning an underlying unitary definition. As a result, employment law obligations fasten on the entity, or combination of entities, exercising the relevant employer functions, regardless of the formal legal organization of the enterprise in question.
Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, and Jeremias Prassl (eds)
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780198783169
- eISBN:
- 9780191826191
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198783169.001.0001
- Subject:
- Law, Employment Law, Company and Commercial Law
The contract of employment is the central legal institution of modern English employment law. It provides the foundation upon which most statutory employment rights are constructed; it provides a ...
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The contract of employment is the central legal institution of modern English employment law. It provides the foundation upon which most statutory employment rights are constructed; it provides a conduit for the implementation of norms negotiated in collective bargaining; and it continues to provide a contractual structure for the terms and conditions of employment for a significant proportion of the working population. The Contract of Employment provides a comprehensive treatise on the theoretical and doctrinal aspects of the English law of the contract of employment in the common law world. Part I examines the theoretical context to the contract of employment, studying its structure and development from a wide variety of theoretical and comparative perspectives. Part II provides an exposition and analysis of the doctrinal aspects of the contract of employment, which progresses from the formation of the contract through its content or terms and conditions to its termination and post-employment obligations, and to the remedies for its breach and wrongful termination. The legal analysis seeks to be informed by a keen sense of the modern labour market context of the contract of employment, and to be sensitive to contemporary challenges such as precariousness, the interaction with migration law, the role of legislation in the contract of employment, and the decline of collective bargaining.Less
The contract of employment is the central legal institution of modern English employment law. It provides the foundation upon which most statutory employment rights are constructed; it provides a conduit for the implementation of norms negotiated in collective bargaining; and it continues to provide a contractual structure for the terms and conditions of employment for a significant proportion of the working population. The Contract of Employment provides a comprehensive treatise on the theoretical and doctrinal aspects of the English law of the contract of employment in the common law world. Part I examines the theoretical context to the contract of employment, studying its structure and development from a wide variety of theoretical and comparative perspectives. Part II provides an exposition and analysis of the doctrinal aspects of the contract of employment, which progresses from the formation of the contract through its content or terms and conditions to its termination and post-employment obligations, and to the remedies for its breach and wrongful termination. The legal analysis seeks to be informed by a keen sense of the modern labour market context of the contract of employment, and to be sensitive to contemporary challenges such as precariousness, the interaction with migration law, the role of legislation in the contract of employment, and the decline of collective bargaining.
Peter Whelan
- Published in print:
- 2014
- Published Online:
- November 2014
- ISBN:
- 9780199670062
- eISBN:
- 9780191749445
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199670062.001.0001
- Subject:
- Law, Employment Law, Competition Law
Cartel activity is prohibited under EU law by Article 101(1) TFEU. Firms violating this provision face severe punishment from the European Commission, the NCAs, and the national courts, which ...
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Cartel activity is prohibited under EU law by Article 101(1) TFEU. Firms violating this provision face severe punishment from the European Commission, the NCAs, and the national courts, which regularly impose stiff fines. Recently, however, it has been recognized that punishment should focus on the individuals within the firms responsible, as well as the firms themselves, leading to a growing tendency to criminalize cartel activity in the EU Member States. Some crucial challenges need to be met if the underlying enforcement objectives are to be achieved in practice without violating prevailing legal norms. First, given the severe consequences of a custodial sentence, criminal antitrust punishment must be justifiable in principle: a robust normative framework rationalizing the existence of criminal cartel sanctions is needed. Second, for it to be legitimate, antitrust criminalization should respect the mandatory legalities of the European jurisdiction in question, including the accused's due process rights and the principle of legal certainty. Finally, the correct practical measures (e.g., a criminal leniency policy and a correctly defined criminal cartel offence) are needed to ensure that the punishment achieves its aims in practice while maintaining its legitimacy. These challenges can be conceptualized respectively as theoretical, legal, and practical. They are analysed in this book to further the understanding of the complexity of the European antitrust criminalization process. The book also acknowledges that the challenges should not be considered in isolation and that, in fact, there is a dynamic relationship between them and that an effective antitrust criminalization policy recognizes and respects this complex interaction.Less
Cartel activity is prohibited under EU law by Article 101(1) TFEU. Firms violating this provision face severe punishment from the European Commission, the NCAs, and the national courts, which regularly impose stiff fines. Recently, however, it has been recognized that punishment should focus on the individuals within the firms responsible, as well as the firms themselves, leading to a growing tendency to criminalize cartel activity in the EU Member States. Some crucial challenges need to be met if the underlying enforcement objectives are to be achieved in practice without violating prevailing legal norms. First, given the severe consequences of a custodial sentence, criminal antitrust punishment must be justifiable in principle: a robust normative framework rationalizing the existence of criminal cartel sanctions is needed. Second, for it to be legitimate, antitrust criminalization should respect the mandatory legalities of the European jurisdiction in question, including the accused's due process rights and the principle of legal certainty. Finally, the correct practical measures (e.g., a criminal leniency policy and a correctly defined criminal cartel offence) are needed to ensure that the punishment achieves its aims in practice while maintaining its legitimacy. These challenges can be conceptualized respectively as theoretical, legal, and practical. They are analysed in this book to further the understanding of the complexity of the European antitrust criminalization process. The book also acknowledges that the challenges should not be considered in isolation and that, in fact, there is a dynamic relationship between them and that an effective antitrust criminalization policy recognizes and respects this complex interaction.
Phil Syrpis
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199277209
- eISBN:
- 9780191707445
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199277209.001.0001
- Subject:
- Law, EU Law, Employment Law
This book investigates the extent to which the European Union intervenes, and should intervene, in domestic labour law. It examines the stated and potential rationales for EU intervention, and argues ...
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This book investigates the extent to which the European Union intervenes, and should intervene, in domestic labour law. It examines the stated and potential rationales for EU intervention, and argues that there are considerable merits to be derived from separating out the integrationist, economic, and social arguments which have been deployed in defence of EU intervention. It critically considers the competence of the EU to act in this field, and demonstrates that proper regard for the subsidiarity and proportionality principles can contribute to the legitimacy of the EU. The book is informed by the ongoing debate on governance in Europe, and aims to provide insights into the implications of the shifts in policy-making technique. The intention is to provide a framework to enable the reader to think about the role that the EU has, and should, play in this field.Less
This book investigates the extent to which the European Union intervenes, and should intervene, in domestic labour law. It examines the stated and potential rationales for EU intervention, and argues that there are considerable merits to be derived from separating out the integrationist, economic, and social arguments which have been deployed in defence of EU intervention. It critically considers the competence of the EU to act in this field, and demonstrates that proper regard for the subsidiarity and proportionality principles can contribute to the legitimacy of the EU. The book is informed by the ongoing debate on governance in Europe, and aims to provide insights into the implications of the shifts in policy-making technique. The intention is to provide a framework to enable the reader to think about the role that the EU has, and should, play in this field.
Diamond Ashiagbor
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199279647
- eISBN:
- 9780191707278
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199279647.001.0001
- Subject:
- Law, EU Law, Employment Law
Labour law and social policy have long provided an arena within which key debates over the depth and pace of European integration have taken place. Increasingly, as the European Union's employment ...
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Labour law and social policy have long provided an arena within which key debates over the depth and pace of European integration have taken place. Increasingly, as the European Union's employment policy has matured, employment and economic policy discourses have come to displace discourses around social policy and social law, a displacement which has occurred in tandem with a shift from legislative harmonisation to the use of ‘soft law’ and governance by means of guidelines. This book charts the evolution of the European Employment Strategy and the new forms of governance to which it has given rise. It offers an interdisciplinary exploration of European social law and employment policy, scrutinising the law and economics of labour market regulation in the European context and responding to the economic critique of traditional notions of social protection. Through a detailed examination of the legal and economic underpinnings of the European Employment Strategy, this book outlines the implications of this strategy for labour law, social protection, and industrial relations within the EU. The book also provides a timely contribution to the growing literature on ‘new governance’ in the EU. This innovative form of governance has the potential to forge a middle course through the regulatory choices facing the EU: the choice over the appropriate level of regulation in the EU, whether national or supranational; that over the legitimate role for the state in regulating or deregulating the labour market; and ultimately, the choice between centralised harmonisation and regulatory competition.Less
Labour law and social policy have long provided an arena within which key debates over the depth and pace of European integration have taken place. Increasingly, as the European Union's employment policy has matured, employment and economic policy discourses have come to displace discourses around social policy and social law, a displacement which has occurred in tandem with a shift from legislative harmonisation to the use of ‘soft law’ and governance by means of guidelines. This book charts the evolution of the European Employment Strategy and the new forms of governance to which it has given rise. It offers an interdisciplinary exploration of European social law and employment policy, scrutinising the law and economics of labour market regulation in the European context and responding to the economic critique of traditional notions of social protection. Through a detailed examination of the legal and economic underpinnings of the European Employment Strategy, this book outlines the implications of this strategy for labour law, social protection, and industrial relations within the EU. The book also provides a timely contribution to the growing literature on ‘new governance’ in the EU. This innovative form of governance has the potential to forge a middle course through the regulatory choices facing the EU: the choice over the appropriate level of regulation in the EU, whether national or supranational; that over the legitimate role for the state in regulating or deregulating the labour market; and ultimately, the choice between centralised harmonisation and regulatory competition.
Jeremias Prassl
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198797012
- eISBN:
- 9780191859458
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198797012.001.0001
- Subject:
- Law, Employment Law
The rise of the gig economy is disrupting business models across the globe. Platforms’ digital work intermediation has had a profound impact on traditional conceptions of the employment relationship. ...
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The rise of the gig economy is disrupting business models across the globe. Platforms’ digital work intermediation has had a profound impact on traditional conceptions of the employment relationship. The completion of ‘tasks’, ‘gigs’, or ‘rides’ in the (digital) crowd fundamentally challenges our understanding of work in modern labour markets: gone are the stable employment relationships between firms and workers, replaced by a world in which everybody can be ‘their own boss’ and enjoy the rewards—and face the risks—of independent businesses. Is this the future of work? What are the benefits and challenges of crowdsourced work? How can we protect consumers and workers without stifling innovation? Humans as a Service provides a detailed account of the growth and operation of gig-economy platforms, and develops a blueprint for solutions to the problems facing on-demand workers, platforms, and their customers. Following a brief introduction to the growth and operation of on-demand platforms across the world, the book scrutinizes competing narratives about ‘gig’ work. Drawing on a wide range of case studies, it explores how claims of ‘disruptive innovation’ and ‘micro-entrepreneurship’ often obscure the realities of precarious work under strict algorithmic surveillance, and the return to a business model that has existed for centuries. Humans as a Service shows how employment law can address many of these problems: gigs, tasks, and rides are work—and should be regulated as such. A concluding chapter demonstrates the broader benefits of a level playing field for consumers, taxpayers, and innovative entrepreneurs.Less
The rise of the gig economy is disrupting business models across the globe. Platforms’ digital work intermediation has had a profound impact on traditional conceptions of the employment relationship. The completion of ‘tasks’, ‘gigs’, or ‘rides’ in the (digital) crowd fundamentally challenges our understanding of work in modern labour markets: gone are the stable employment relationships between firms and workers, replaced by a world in which everybody can be ‘their own boss’ and enjoy the rewards—and face the risks—of independent businesses. Is this the future of work? What are the benefits and challenges of crowdsourced work? How can we protect consumers and workers without stifling innovation? Humans as a Service provides a detailed account of the growth and operation of gig-economy platforms, and develops a blueprint for solutions to the problems facing on-demand workers, platforms, and their customers. Following a brief introduction to the growth and operation of on-demand platforms across the world, the book scrutinizes competing narratives about ‘gig’ work. Drawing on a wide range of case studies, it explores how claims of ‘disruptive innovation’ and ‘micro-entrepreneurship’ often obscure the realities of precarious work under strict algorithmic surveillance, and the return to a business model that has existed for centuries. Humans as a Service shows how employment law can address many of these problems: gigs, tasks, and rides are work—and should be regulated as such. A concluding chapter demonstrates the broader benefits of a level playing field for consumers, taxpayers, and innovative entrepreneurs.
Guy Davidov and Brian Langille (eds)
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199693610
- eISBN:
- 9780191729744
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199693610.001.0001
- Subject:
- Law, Employment Law, Philosophy of Law
Labour law is widely considered to be in crisis, at least by scholars of the field. This crisis has an obvious external dimension—labour law is attacked for impeding efficiency, flexibility and ...
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Labour law is widely considered to be in crisis, at least by scholars of the field. This crisis has an obvious external dimension—labour law is attacked for impeding efficiency, flexibility and development; vilified for reducing employment and for favouring already well placed employees over less fortunate ones; and discredited for failing to cover the most vulnerable workers and workers in the ‘informal sector’. These are just some of the external challenges to labour law. There is also an internal challenge, as labour lawyers themselves increasingly question whether their discipline is conceptually coherent, relevant to the new empirical realities of the world of work, and normatively salient in the world as we now know it. The goal of this book is to respond to such fundamental challenges by asking the most fundamental questions: What is labour law for? How can it be justified? And what are the normative premises on which reforms should be based? There has been growing interest in such questions in recent years. The current book seeks to take this body of scholarship seriously and take it forward. Its aim is to provide, if not answers which satisfy everyone, at least intellectually nourishing food for thought for those interested in understanding, explaining and interpreting labour laws.Less
Labour law is widely considered to be in crisis, at least by scholars of the field. This crisis has an obvious external dimension—labour law is attacked for impeding efficiency, flexibility and development; vilified for reducing employment and for favouring already well placed employees over less fortunate ones; and discredited for failing to cover the most vulnerable workers and workers in the ‘informal sector’. These are just some of the external challenges to labour law. There is also an internal challenge, as labour lawyers themselves increasingly question whether their discipline is conceptually coherent, relevant to the new empirical realities of the world of work, and normatively salient in the world as we now know it. The goal of this book is to respond to such fundamental challenges by asking the most fundamental questions: What is labour law for? How can it be justified? And what are the normative premises on which reforms should be based? There has been growing interest in such questions in recent years. The current book seeks to take this body of scholarship seriously and take it forward. Its aim is to provide, if not answers which satisfy everyone, at least intellectually nourishing food for thought for those interested in understanding, explaining and interpreting labour laws.
Hugh Collins
- Published in print:
- 1992
- Published Online:
- March 2012
- ISBN:
- 9780198254355
- eISBN:
- 9780191681479
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198254355.001.0001
- Subject:
- Law, Employment Law
The latest title in the Oxford Monographs on Labour Law series, this study elucidates the general legal rules and principles of the law of unfair dismissal, as well as offering an account of the ...
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The latest title in the Oxford Monographs on Labour Law series, this study elucidates the general legal rules and principles of the law of unfair dismissal, as well as offering an account of the social, political, and philosophical context in which the idea of protection from unfair dismissal at work has developed and currently operates.Less
The latest title in the Oxford Monographs on Labour Law series, this study elucidates the general legal rules and principles of the law of unfair dismissal, as well as offering an account of the social, political, and philosophical context in which the idea of protection from unfair dismissal at work has developed and currently operates.
Ruth Dukes
- Published in print:
- 2014
- Published Online:
- November 2014
- ISBN:
- 9780199601691
- eISBN:
- 9780191792700
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199601691.001.0001
- Subject:
- Law, Employment Law, Constitutional and Administrative Law
The book aims to contribute to current debates regarding the idea of labour law. In particular, it aims to assess the validity of the suggestion that old ways of thinking about the subject have ...
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The book aims to contribute to current debates regarding the idea of labour law. In particular, it aims to assess the validity of the suggestion that old ways of thinking about the subject have become outdated. Detailed consideration is given to two such ‘old ways’: the idea of the labour constitution, developed by Hugo Sinzheimer in the early years of the Weimar Republic, and the principle of collective laissez-faire, elaborated by Otto Kahn-Freund in the 1950s. The question is then addressed as to whether and how these ideas could be abstracted from the political, economic, and social contexts within which they were developed so that they might still usefully be applied to the study of labour law. The central argument of the book is that the labour constitution can be developed so as to provide an ‘enduring idea of labour law’. That argument is constructed against a critique of the work of a number of British scholars who have argued in recent years that labour law scholarship ought to be reorientated to align more closely with the functioning of labour markets. As compared with the posited ‘law of the labour market’, the primary claim made for the idea of the labour constitution is that it highlights the inherently political nature of labour laws and institutions, as well as their economic functions. It provides a framework for analysing labour laws, labour markets, and labour market institutions which does not limit the capacity of scholarship in the field to retain its critical edge.Less
The book aims to contribute to current debates regarding the idea of labour law. In particular, it aims to assess the validity of the suggestion that old ways of thinking about the subject have become outdated. Detailed consideration is given to two such ‘old ways’: the idea of the labour constitution, developed by Hugo Sinzheimer in the early years of the Weimar Republic, and the principle of collective laissez-faire, elaborated by Otto Kahn-Freund in the 1950s. The question is then addressed as to whether and how these ideas could be abstracted from the political, economic, and social contexts within which they were developed so that they might still usefully be applied to the study of labour law. The central argument of the book is that the labour constitution can be developed so as to provide an ‘enduring idea of labour law’. That argument is constructed against a critique of the work of a number of British scholars who have argued in recent years that labour law scholarship ought to be reorientated to align more closely with the functioning of labour markets. As compared with the posited ‘law of the labour market’, the primary claim made for the idea of the labour constitution is that it highlights the inherently political nature of labour laws and institutions, as well as their economic functions. It provides a framework for analysing labour laws, labour markets, and labour market institutions which does not limit the capacity of scholarship in the field to retain its critical edge.
Joanne Conaghan, Richard Michael Fischl, and Karl Klare (eds)
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199271818
- eISBN:
- 9780191699542
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271818.001.0001
- Subject:
- Law, Employment Law
Throughout the industrial world, the discipline of labour law has fallen into deep philosophical and policy crisis, at the same time as new theoretical approaches make it a field of considerable ...
More
Throughout the industrial world, the discipline of labour law has fallen into deep philosophical and policy crisis, at the same time as new theoretical approaches make it a field of considerable intellectual ferment. Modern labour law evolved in a symbiotic relationship with a post-war institutional and policy agenda, the social, economic, and political underpinnings of which have gradually eroded in the context of accelerating international economic integration and wage-competition, a decline in the capacity of the nation-state to steer economic progress, the ascendancy of fiscal austerity and monetarism over Keynesian/welfare state politics, the appearance of post-industrial production models, the proliferation of contingent employment relationships, the fragmentation of class-based identities and the emergence of new social movements, and the significantly increased participation of women in paid work. These developments offer many appealing possibilities — the opportunity, for example, to contest the gender division of labour and re-think the boundaries between immigration and labour policy. However, they also hold out quite threatening prospects — including increased unemployment and inequality and the decline of workers' organizations and social participation — in the context of proliferating constraints imposed by international financial pressures on enacting redistributive social and economic policies. New strategies must be developed to meet these challenges. These chapters — which are the product of a transnational comparative dialogue among academics and practitioners in labour law and related legal fields, including social security, immigration, trade, and development — identify, analyse, and respond to some of the conceptual and policy challenges posed by globalization.Less
Throughout the industrial world, the discipline of labour law has fallen into deep philosophical and policy crisis, at the same time as new theoretical approaches make it a field of considerable intellectual ferment. Modern labour law evolved in a symbiotic relationship with a post-war institutional and policy agenda, the social, economic, and political underpinnings of which have gradually eroded in the context of accelerating international economic integration and wage-competition, a decline in the capacity of the nation-state to steer economic progress, the ascendancy of fiscal austerity and monetarism over Keynesian/welfare state politics, the appearance of post-industrial production models, the proliferation of contingent employment relationships, the fragmentation of class-based identities and the emergence of new social movements, and the significantly increased participation of women in paid work. These developments offer many appealing possibilities — the opportunity, for example, to contest the gender division of labour and re-think the boundaries between immigration and labour policy. However, they also hold out quite threatening prospects — including increased unemployment and inequality and the decline of workers' organizations and social participation — in the context of proliferating constraints imposed by international financial pressures on enacting redistributive social and economic policies. New strategies must be developed to meet these challenges. These chapters — which are the product of a transnational comparative dialogue among academics and practitioners in labour law and related legal fields, including social security, immigration, trade, and development — identify, analyse, and respond to some of the conceptual and policy challenges posed by globalization.
