The Hierarchy of Differing Behavioural Standards of Review in Labour Law

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Abstract

This paper pursues a line of enquiry regarding employment laws which promulgate standards (rather than rules), the legitimacy of which is 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 they owe towards their employees, employers are expected to discharge a variety of standards of conduct and adjudicators must apply differing standards of review in evaluating the lawfulness of managerial discretion. These differing standards can be grouped into a hierarchy, exploring how they function to exert a higher or lower level of scrutiny of the managerial prerogative. The paper proceeds to explore the rationales for the promulgation of such differing behavioural standards in different decision-making contexts. Finally, it goes on to analyse whether such differing standards are justifiable from a formalistic and doctrinal perspective and considers the practicability and desirability of a modest package of reform consisting of limited re-alignment whereby certain standards would be harmonised in similar contexts.
Original languageEnglish
Pages (from-to)146-80
Number of pages35
JournalIndustrial Law Journal
Volume40
Issue number2
DOIs
Publication statusPublished - Jun 2011

Keywords

  • intensities of scrutiny
  • standards of review
  • standards
  • employment law
  • labour law
  • standards of conduct
  • employment rights
  • labour rights
  • rules

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