Task flexibility in employment : injunctions, Community law and judicial review in English labour law

Abstract

This is an unfashionable study. As Europe seeks to construct a political order based on a free market, with labour regulated by contract, supplemented by an interventionist legislature providing some of the minimum standards to which all labour agreements comply the themes pursued here are much more antiquated. The tools used, for a confessedly more limited legal goal, are the more ancient, medieval legal institutions of intangible property and "office". These are, of course, the heirs to the feudal legal system, where power was a fusion of economic and political entitlements^ But these regulated, fixed arrangements were progenitors of very powerful workers' institutions such as the craft guilds, imputed to Durkheim as his model of the ideal social arrangementRecent developments in English labour law have led me to explore the utility of the "office" and "status" concepts as means of developing workers' entitlements. This is also a basis for the wider question of how the development of these legal categories can change the character that labour law takes within European Law. Similarly, Community law on fundamental rights and the protection of the right of property within Community law raises questions as to the nature of such property rights, and the role that this legal institution might play in the legal analysis of the employment relationship. Contemporaneously and alongside the renewed legal interest in the "office", English law has started to permit injunctions of contracts of employment at the behest of the employee, which provide substantive possibilities for legal job security. Trying to unite this English law proprietary development with the European Community Law protection of fundamental rights constitutes a major part of this work. To that extent, the study is not merely noetic, and has the practical aim of aspiring to write an argument. But within its academic terms of reference, it explores the interdependency yet distinctness of two of the oldest concepts in English law, and their application to labour law.