Jeremias Prassl, The Concept of the Employer, Oxford: Oxford University Press, 2015, xxvii + 231 pp, hb, £60.00.
| DOI | http://doi.org/10.1111/1468-2230.12185 |
| Date | 01 March 2016 |
| Published date | 01 March 2016 |
| Author | David Cabrelli |
bs_bs_banner
REVIEWS
Jeremias Prassl, The Concept of the Employer,Oxford: Oxford University Press,
2015, xxvii +231 pp, hb, £60.00.
In this illuminating monograph, Prassl has produced the first comprehensive
analytical critique of the unitary conception of ‘the employer’ in the English-
speaking common law world. This is a project which has been long overdue,
and follows in the footsteps of leading labour law scholars such as Collins,
Davies, Deakin, Freedland and Fudge who produced a series of seminal papers
in the 2000s on the issue of ascribing managerial responsibilities to a broader
range of employing entities. The underlying premise of this work is that the
common law’s unitary conception of the single entity employer (usually a body
corporate with separate legal personality) tied to an identifiable individual
employee on the basis of a bilateral contract of employment has become
frayed at the edges. For example, with the decline in the manufacturing
industry in the UK and its displacement by a service-based economy, the once
ubiquitous ‘Fordist’ model of production involving wholly integrated processes
of production at the level of a single firm employing a multitude of individuals
on the basis of a standard employment contract (a phenomenon referred
to as ‘vertical disintegration’: H. Collins, ‘Independent Contractors and the
Challenge of Vertical Disintegration to Employment Protection Laws’ (1990)
OJLS 353), has faded over the past fifty years. The end result has been that
a sizeable number of individuals personally performing work are increasingly
denied employment protection because it is not possible to identify a single
entity which is carrying out each of the employer functions of hiring, firing,
receiving the individual’s labour, providing work and pay, and co-ordinating
the internal and external management of the enter prise. As Prassl rightly notes,
the paradigm case is the agency work relationship, where the individual finds
him/herself interposed within a triangulated ar rangement involving more
than one entity, whereby the managerial functions of hiring, firing, internal
management/control, receipt of labour and providing work and pay, are
shared out or parcelled up amongst a number of distinct (in law) legal persons.
Another example of the sharing or parcelling out of managerial functions is
provided by the private equity context, where the true managerial decision
centres are often located outside the single entity that is tied to the individual
through a bilateral contract. The consequence in both of these cases of trian-
gulated work and decentralised decision-making is the under-inclusiveness of
employment law coverage, with certain vulnerable and dependent individuals
falling outside the purview of employment protection. Unlike the more
typical situation where an individual personally performing work is denied
the benefit of common law and statutory employment protection – namely,
the failure to establish that he/she is an employee owing to a lack of mutuality
of obligation or exclusive personal service – the individual falls outside the
C2016 The Author.The Moder n Law Review C2016 The Modern Law Review Limited. (2016) 79(2) MLR 364–379
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
To continue reading
Request your trial