Contrasting Laws on the Variation of Commercial and Employment Contracts

The full title for Professor Cabrelli's work is ‘Contrasting the Laws Governing the Variation of Commercial and Employment Contracts’. We will begin by 2 pm with a 10-minute tea reception. Professor Cabrelli will present for about 30 minutes, followed by a 30-minute Q&A.

Below is an abstract of Professor Cabrelli's work:

One of the great paradoxes of labour law is the patent incongruence between the static contractual framework that governs employment and the inherently dynamic character of the relationship itself. The tendency of the law to reduce the employment contract to ‘an initial treaty which remains in force until its termination [or] unless… modified by another equally decisive and definitive agreement’ generates a sizeable degree of artificiality into the governance of the relationship.[1] The managerial prerogative, the implied duty of the employee to obey reasonable orders and instructions and the law regulating the variation of the employment contract are each pressed into service by the common law to address the variety of tensions that emerge as a result of this dissonance.

It is to the latter issue that this paper will steer the discussion. In particular, the analysis will focus on the nature and requisite quality of the worker’s consent that is demanded by the law to give effect to a variation of the employment contract. This paper will provide a sketch of the orthodox rules of contract law on consent to a contractual variation and compare them with the extant rules applicable in relation to the law governing the contract of employment. The principal claim that I will make is that the broader the scope (of the legal criteria) for consent to variation to arise, the greater the irrelevance of, and the extent to which, the law of termination of the employment contract and the question of ‘fire and rehire’ will be crowded out of view. The insight is that the recognition of a more accepting or stricter notion of the legal conception of consent has significant repercussions for the law regulating employment contracts, giving rise to opposing policy outcomes.

[1] M. Freedland, The Personal Employment Contract (Oxford, OUP, 2003) 237.

You can access Professor Cabrelli's papers on the Social Science Research Network (SSRN) at http://ssrn.com/author=828137

You can request a complimentary inspection copy of his new book Employment Law: A Very Short Introduction. The Very Short Introductions series has proven to be useful for both lecturers and students. You can order an inspection copy here: https://global.oup.com/academic/product/employment-law-a-very-short-introduction-9780198819240

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