The Legal Construction of Personal Work Relations

Citation

Freedland, M., & Kountouris, N. (2011). The Legal Construction of Personal Work Relations. Oxford University Press. Oxford Monographs on Labour Law.

Chapter Summary

The book is a research monograph of about 476 pages on the conceptual framework of European employment law, and in particular on how the law constructs the relationships under which people work for others. The publisher's description says it draws on extensive comparative research into the legal architecture of employment relations in national systems and in EU law, tests the traditional contract of employment as a way of framing modern working relationships, and then proposes a new model built on the concept of a "personal work nexus". The argument runs through four parts, and the interaction between domestic law, mainly English, and EU law is traced throughout.

Introduction

The introduction, titled "Evolution and Reformulation in the Legal Construction of Personal Work Relations", states the project: how the law's picture of personal work relations has evolved and how it might be reformulated.

Part I, The Legal Analysis of Personal Work Relations (Chapters 1–2)

• Chapter 1: The Legal Analysis of Personal Work Relations: Boundaries, Paradigms, and Legal Formats. The chapter considers the relational scope of labour law, proposes a functional definition of the personal work relation as its domain, and aligns that idea with existing categories in English and other European legal systems.
• Chapter 2: A European Comparative Approach to the Legal Construction of Personal Work Relations. The chapter explains the functions and perspectives behind the comparison, its methodology, and the sources of regulation and hierarchies of norms, including English law's non-hierarchical system of sources.

Part II, The Personal Work Relation as a Contract (Chapters 3–6)

• Chapter 3: The Legal Construction of Personal Work Relations as Contracts. The chapter treats the law of personal work contracts as regulatory modelling and layered regulation, and assesses the binary divide between employment and other work contracts, with a comparative view of that divide.
• Chapter 4: The Formation and Structure of Contracts of Employment. The chapter covers conditions of formation, employment-specific contractual intention, illegality, formality and information, and the personal, organisational and economic structure of the contract.
• Chapter 5: The Content and Performance of Contracts of Employment. The chapter deals with implied terms (including fidelity, care and a possible principle of mutual trust and good faith), the integrated and dis-integrated approaches to performance, the wage-work bargain, variation and suspension.
• Chapter 6: The Termination and Transformation of Employment Contracts. The chapter examines the role of contract law in regulating termination, a European spectrum of rules on duration and grounds, English law as a case study of dual regulation through wrongful and unfair dismissal, and transformations such as changes of employer.

Part III, The Personal Work Relation as a Legal Nexus (Chapters 7–9)

• Chapter 7: Personal Work Contracts Other Than the Contract of Employment. The chapter considers how contracts outside employment are categorised, their formation and structure, and their performance and termination, and ends by questioning how narrow the contractual perspective is for independent workers and for personal work in a joint enterprise.
• Chapter 8: Contract, Relation, and Nexus in the Legal Construction of Personal Work Relations. The central theoretical chapter. It sets out the shortcomings of a purely contractual analysis and introduces the personal work relation as a network or nexus of legal connections, primary and secondary.
• Chapter 9: The Personal Work Profile and the Idea of Personality in Work. The chapter introduces the personal work profile, proposes a critical taxonomy of personal work relations, and discusses the values of dignity, capability and stability in work.

Part IV, The Personal Work Relation in European Law (Chapter 10)

• Chapter 10: The Legal Construction of Personal Work Relations and the Role of European Law. The chapter discusses the fragmentation of EU employment regulation and the denormalisation of work arrangements, then sets out a possible European legal framework for personal work relations built on regulatory layers, and weighs its prospects and problems.

Final chapter: Mutualization and Demutualization in the Legal Construction of Personal Work Relations

The book closes with a chapter on mutualization and demutualization, listed after Part IV in the contents.

Key Concepts

Parts I and II

• Personal work relation: the proposed domain of labour law, defined functionally and wider than the contract of employment.
• Binary divide: the legal separation between employment and other work contracts, which the authors test.
• Integrated and dis-integrated systems: whether the regulation of performance and termination is bound up with general contract law or runs apart from it.
• Layered regulation: the idea that several levels of regulation operate on the same relation.

Part III

• Personal work nexus: the web of legal connections of which a personal work relation consists, as opposed to a single contract.
• Personal work profile: a way of describing the situation and career of the worker for the purpose of classification.
• Normative characterisation: the use of the profile to decide the protection a relation should receive.

Part IV

• European legal framework for personal work relations: the proposed structure for EU regulation.
• EU regulatory layers: the way EU rules operate at different levels of generality.

Critical Analysis

Strengths

• A defined thesis. The publisher states the argument, and the contents follow it step by step: Part I defines the domain, Part II examines contract, Part III replaces contract with nexus, Part IV applies the idea to EU law.
• Comparative method. The authors draw on English, other European and EU law, and Chapter 2 sets out the methodology, so the comparison is explicit.
• Close doctrinal work. The treatment of formation, implied terms, variation, suspension and termination in Chapters 4 to 6 is detailed, and gives the argument a base in the law of the employment contract.

Limitations

• A monograph, not a course text. The book is organised around its thesis, not around the topics of a labour-law syllabus, and does not follow the order of a standard course.
• Dated context. The book appeared in 2011 and so predates later developments in EU and UK labour law.
• Heavily conceptual. Chapters 8 and 9 introduce a set of new terms, such as nexus, profile and normative characterisation, that readers must absorb before the proposals in Part IV make sense.
• Level. It assumes a prior course in labour law, including the contract of employment and employment status.

Where It Fits in the Course

This is the theory-led research monograph in the labour-law list. Taylor and Emir's Employment Law: An Introduction is the gentler first book. The Cambridge Labour Law by Hugh Collins and others, the Hart Labour Law by Simon Deakin and others, and Anne Davies's Perspectives on Labour Law are labour-law textbooks covering sources, the contract, termination and collective rights, and give the doctrinal grounding that Freedland and Kountouris presuppose. Smith and Wood's Employment Law is the detailed UK doctrinal text. Freedland and Kountouris is best read after one of these, when the question is not what the rules are but how and why the law frames working relationships as it does.

How to Use This Book

It suits advanced undergraduates, postgraduates and researchers in labour law who already know the contract of employment and employment status.

A practical reading plan:

• Core: the Introduction and Chapter 1 for the definition of the personal work relation, then Chapters 3 and 8 for the critique of the contract model and the idea of the nexus.
• Doctrinal reading: Chapters 4 to 6 serve as a detailed treatment of the contract of employment from formation to termination.
• For employment status questions: Chapter 7 on contracts other than employment and Chapter 9 on the personal work profile.
• For EU law and harmonisation: Chapters 2 and 10.
• Alongside: a standard labour-law textbook for the current English rules, and a note of which parts of the law have changed since 2011.