NUFFIELD FOUNDATION – SOCIAL SCIENCES SMALL GRANT SCHEME
APPLICATION:
EXAMINING THE APPLICATION OF EMPLOYMENT STANDARDS IN
THE WORKPLACE
David Cabrelli
Lecturer in Commercial Law
School of Law
University of Edinburgh
The University of Edinburgh is a charitable body, registered in Scotland, UK,
with registration number SC005336.
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Nuffield Foundation – Social Sciences Small Grant Scheme Application
Statement of Research: Examining the application of employment standards in
the workplace
Principal Researcher’s Background
In its Report entitled ‘Law in the Real World: Improving our Understanding of
How Law Works’ (November 2006), the Nuffield Foundation’s Inquiry
identified the funding of investment in the capacity of early career researchers
to undertake socio-legal and empirical research as one of its objectives. I am
an early career legal researcher who has not previously undertaken empirical
or socio-legal research. I am committed to undertaking empirical research to
advance my research and career profile generally, but require training and
extra time to develop initial capacity to engage in empirical work. At present,
my research in the fields of labour law and commercial law has been doctrinal
in nature. I am of the firm view that pursuing empirical research methods in
combination with my existing expertise in doctrinal work, would enable me to
gain additional insights, knowledge and understanding of issues arising in
these fields. It would also enable me to test some of the ideas which I have
advanced in my doctrinal work, e.g. by supporting some of my doctrinal
conclusions or perhaps pointing to weaknesses. This research project is a
prime example.
Context
In the area of labour law in the UK today, the common law and statute impose
constraints on the conduct, actions and decisions of employers. The principal
reason for these restraints centres around (common law and statutory)
employment protection rights. UK labour law recognises that employees are in
a weaker bargaining position vis-à-vis their employers. Those rights may be
expressed as rules or standards. Rules and standards can be distinguished in
terms of the degree of precision of the articulation of the employment right;
the more precise the command addressed to the employer, the more likely that
it ought to be classified as a rule. The more open-ended the command, the
greater the force in the contention that it is a standard.
My current research is concerned with a detailed study of the nature, scope of
application and content of employment rights which are expressed as
standards, rather than rules. In the field of labour law, the failure to theorise
about the nature of such standards represents a gap in the academic literature.
This can be contrasted with the field of company law where the rationales for
the expression of rights (in favour of shareholders, corporations or creditors)
as standards (Kaplow, 1993; Diver, 1983) and the importance of the
theoretical distinction between standards of conduct and standards of review
(and the rationales for such a distinction) (Eisenberg, 1993; Allen, Jacobs &
Strine JR, 2002) have been afforded a large degree of scrutiny. Standards of
conduct are directed at decision-makers and signpost the law’s requirements
regarding the behaviour of that decision-maker. However, standards of review
are directed at adjudicators and represent the degree of scrutiny which the law
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expects the adjudicator to apply towards an assessment of the actions or
decisions of the decision-maker.
Where an employment right is articulated as a standard, depending on the
context of the right involved, the employer's conduct is judged by an
adjudicator according to differing standards of review which can be charted in
terms of a hierarchy of intensity of review. For example, whether some
employment rights have been breached are judged by an adjudicator according
to a rationality standard which entails a low degree of scrutiny of the
employer, others on the basis of an objective standard, some based on a
mixture of subjective and objective standards (e.g. the ‘range of reasonable
responses’ standard) and others on a proportionality standard. The rationality
standard is the most forgiving for the employer to discharge with the objective
and proportionality standards exerting the strictest constraints, since they
involve a higher intensity of scrutiny and thus provide an adjudicator with a
broader scope to interfere.
Difficulties Generated by Differing Standards in Labour Law
The difficulty with a body of law (such as labour law) having different
standards of review in different rights contexts is that the facts of cases cannot
be compartmentalised in the same way as the rights.1 In practice, when an
employee presents a complaint to, or initiates an action in, an employment
tribunal or a court, that complaint or action may well entail a claim for breach
or infringement of a right which attracts a weaker standard of review alongside
a claim for breach or infringement of a right which is based on a stronger
standard. For example, a claim based on two legal grounds may entail the
application of a ‘range of reasonable responses’ standard in respect of the first
ground, whilst the second ground may involve the application of an objective
standard.
Moreover, rather confusingly, complaints or actions based on a claim for
breach of certain rights in the same employment context sometimes attract
different standards of review. And sometimes, certain rights themselves (a)
involve the application of more than one standard at different stages or (b)
convert from one standard to another in a particular fact-specific context.
In doctrinal terms, the law looks as if it is incoherent and operates irrationally
in certain circumstances, imposing adverse mental gymnastics on adjudicators
and sending mixed signals to employers about the expectations which the law
has regarding the level of scrutiny of their conduct and/or decisions. How the
standards are applied, and accordingly, the strength of the scrutiny exerted by
an adjudicator over the decision-making of an employer, is dependent on how
the evidence and the facts are presented - which is a particularly arbitrary way
to decide how the law ought to operate.
However, the temptation to conclude that the existing system of labour law
functions irrationally and therefore automatically ‘needs’ reformulation should
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This statement is not to suggest that it is somehow always straightforward to
compartmentalise rights.
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be resisted unless empirical research indicates that there is clear evidence of a
pressing need for reform. Hence, my intention is to take this research in the
direction of unearthing the processes which are actually playing out on in
practice. By understanding how standards are being applied and understood by
solicitors, advocates and barristers, a better grasp of the difficulties (if any)
associated with differing standards in the practical arena can be attained.
Aims and Objectives
The main aims of this research are to explore the ways in which legal
standards are being applied in practice and whether legal practitioners perceive
their employee and employer clients to be operating under constraints as a
consequence of the presence of the hierarchy of diverse standards of review.
The key objectives are to assess:
(i)
the extent to which standards of review in labour law are being applied
by the professional advisers of employees or employers to make their
cases easier to win;
(ii)
whether the professional advisers of employees advise them to raise
claims based on a breach of employment rights which involve
objective or proportionality standards of review to be applied by
adjudicators (since such standards entail a more exacting assessment of
the conduct of the employer);
(iii)
the extent to which the professional advisers of employers advise them
to resist claims raised by employees based on a breach of employment
rights which entail the application of an objective or proportionality
standard of review, with the argument that such claims ought to have
been raised on the basis of alternative employment rights which attract
a more forgiving ‘rationality’ or ‘range of reasonable responses’
standard (i.e. as a means of converting the objective or proportionality
standard to the comparatively lenient ‘rationality’ or ‘range of
reasonable responses’ standard);
(iv)
what (if any) constraints the professional advisers of employers
perceive their clients as decision-makers to be labouring under and
whether the standards of review applied by adjudicators feature on
their list of perceived constraints; and
(v)
the ways in which the professional advisers of employees and
employers apply standards of review in order to initiate and defend
employment law claims, i.e. what strategies and processes do they
adopt?
This funding application is to aid mainly with the costs of travel,
administrative and secretarial assistance, but also the costs of transcribing
interviews and the costs of my time.
Method
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I intend to undertake semi structured interviews with solicitors, advocates and
barristers in respect of five past or ongoing cases which are identified in
advance. This will entail interviewing the ten solicitors/advocates/barristers
involved in those cases. In total, this equates to five particular cases since in
respect of each case, I will be required to interview the employer’s
solicitor/advocate/barrister and the employee’s solicitor/advocate/barrister.
Three of the five cases selected will be cases which were pursued in the
employment tribunal or courts. The remaining two cases will be cases which
were settled before they proceeded to a tribunal or court hearing. The research
will also entail an examination of the written claim forms and written court
pleadings in the context of the five selected cases, together with the court files
of the solicitors for the employees and employers.
Ethical Conduct and Scrutiny
This proposal has been developed according to the ethical guidelines set out
by the University of Edinburgh and the ESRC. The University of Edinburgh’s
ethics procedures and guidelines will be followed throughout in order to
ensure that it accepts responsibility for the ethical conduct of the research.
Note in particular that written consent will be obtained from all participants
involved in the project, all interviews will be undertaken in confidence and all
participants and cases will be anonymised in publication/dissemination.
Various requirements are imposed by the courts with regard to access to claim
forms, court pleadings and court files. Those requirements are outlined in the
attached Scottish Government protocol for obtaining access to court records.
My intention is to obtain the consent of the courts to access these documents
in accordance with the said Scottish Government protocol. The employment
tribunals and Employment Appeal Tribunal in London and Edinburgh do not
permit public access to employment tribunal forms and papers lodged by
employers and employees for research purposes or otherwise.
Bibliography
W T Allen, J E Jacobs, L B Strine JR, ‘Realigning the standard of Review of Director
due care with Delaware Public Policy: A Critique of Van Gorkom and its Progeny as
a Standard of Review Problem’ (2002) 96 North Western University Law Review 449,
454-455.
C. S. Diver, ‘The Optimal Precision of Administrative Rules’ 93 Yale L.J. 65 (1983).
M. A. Eisenberg, “The Divergence of Standards of Conduct and Standards of Review
in Corporate Law” (1993) 62 Fordham Law Review 437, 466.
L. Kaplow, “Rules Versus Standards: An Economic Analysis” 42 Duke Law Journal
557.
R. Rideout, The Lack of Principles in Labour Law” (2000) 53 Current Legal
Problems 409.
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