Ever since the late 1960s and 1970s, but particularly since the election of the Labour Government in 1997, there has been a substantial growth in the statutory regulation of employment relations. Employees today enjoy statutory rights to inter alia a minimum wage, maximum working hours, fair disciplinary procedures, and protection from discrimination and from unfair dismissal. To the extent that these rights cannot be contracted out of, freedom of contract is consequently limited. Nonetheless, the contract of employment remains, in Otto Kahn-Freund's much quoted phrase, “the corner-stone of the edifice” of the individual employment relationship. Because of the way in which the statutory law has been drafted, resting on a presupposition of the existence of a contract of employment, the importance of the contract of employment can even be said to have increased as a result of the growth in statutory law. Not only does the contract constitute the apparatus for the legal enforcement of agreements to employ and to be employed, and for the adjudication of disputes arising out of those agreements, it also performs the less direct function of providing the body of law necessary for the interpretation and application of statutory employment rights.
In Douglas Brodie's new work, The Contract of Employment, the focus is very firmly with the first, more direct of these functions. The book deals with such topics as identifying the contract of employment, formation and variation of the contract, implied terms, damages, and termination by reason of material breach or wrongful dismissal. It does not deal, except in passing, with any of the statutory rights enjoyed by employees. In fact a more accurate, though admittedly rather unwieldy, title for the work might have been “The Common-law-based Law of the Contract of Employment”, a title suggested by Mark Freedland in a slightly different context in his The Personal Employment Contract (2003). A second volume dealing with the statutory protection of employment rights is planned for publication by W Green at an unspecified future date.
As is fitting for any work dealing with the common law of the contract of employment, much of the book is devoted to a discussion of implied contractual terms. For many years now, Brodie has been at the very forefront of scholarship dealing with the implied term of “mutual trust and confidence”. As he illustrates in this latest work, it is the development of such implied terms by the courts...
