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

Abstract

This paper pursues a line of inquiry regarding employment laws which promulgate standards (rather than rules), the legitimacy of which are premised on the need to scrutinize 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. At the fulcrum of the standard-setting process lies a tension between a recognition of the necessity of freedom of action on the part of the commercial operation of the employer, while at the same time forging a balance which is reflective of the law's concern to police the potential for the exploitation of employees.

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 behavioral 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 behavioral standards in different decision-making contexts. Consideration is also given to the contexts where the standards of conduct differ from the standards of review applied and the premises on which such a distinction can tenably made. The paper goes on to analyse whether such differing standards are justifiable from a doctrinal and functionalist 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 standard, Labour law, Employment law

JEL Classification: K31, J40, J71