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The Common Law Employment Relationship

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

The contract of employment provides in many jurisdictions the legal foundation for the employment of workers. This book examines how the development of the common law under the influence of contemporary social and economic pressures has caused this contract to evolve.
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Chapter 12: Conclusions

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

Extract





In Chapter 1, we noted the long-standing tendency of the common law to import the values of the law of master and servant.1 As is conventional at this juncture, we referred to the content of implied terms such as the obligation to obey lawful and reasonable orders by way of evidence. Through the conduit of such key implied terms, the values of the law of master and servant continue to exercise an influence. Whilst this traditional perspective continues to carry validity, we sought to explore the extent to which the courts have seen fit to modernize the contract. In Horkulak v Cantor Fitzgerald, Newman J claimed that ‘the notion of an employment contract giving rise to a “master and servant” relationship is now obsolete’.2 Again, in a characteristically bold dictum in Johnson v Unisys Ltd, Lord Hoffmann expressed the view that much has changed:3

Over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognised that a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognise this social reality. Most of the changes have been made by Parliament. The Employment Rights Act 1996 consolidates numerous statutes which have conferred rights upon employees. European law has made a substantial contribution. And the common law has adapted...

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