The Hierarchy of Differing Behavioural Standards in Labour Law: A Case for Limited Re-Alignment?

Abstract

This paper pursues a line of enquiry regarding employment laws which promulgate standards (rather than rules), the legitimacy of which are premised on the need to scrutinise managerial autonomy pursuant to a norm-setting, rather than norm-reflecting agenda. Insights will be offered in relation to the expectations about the exercise of the managerial prerogative which the law transmits through such standards. The argument is advanced that a by-product of the common law and statutory policy initiatives lying at the heart of the regulation of managerial autonomy has been the emergence of differing behavioural standards in the employment relationship. In order to satisfy the common law and statutory obligations which it owes towards its employees, employers are expected to discharge a variety of standards of conduct and review. These differing standards can be grouped into a hierarchy, exploring how they function at higher or lower levels of managerial scrutiny. The paper proceeds to explore the rationales for the promulgation of such differing behavioural standards in different decision-making contexts. The paper goes on to analyse whether such differing standards are justifiable from a formalistic and doctrinal perspective and considers the desirability of a package of reform consisting of the re-alignment of standards in order to reflect fundamental values underpinning the employment relationship.

Keywords: labour law, employment law, employment rights, labour rights, rules, standards, standards of conduct, standards of review, intensities of scrutiny