Social Rights and the Function of Employing Entities

(2017) 38(2) Oxford Journal of Legal Studies 482

King's College London Law School Research Paper No. 2017-03

20 Pages Posted: 2 Jan 2017 Last revised: 20 Feb 2018

See all articles by Ewan McGaughey

Ewan McGaughey

School of Law, King's College, London; Centre for Business Research, University of Cambridge; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: October 28, 2016

Abstract

In The Concept of the Employer (2015) Jeremias Prassl develops an elegant model to find who bears labour and employment law duties. It offers a logical complement to the multi-factor test to determine who is an 'employee.' This is meant to ensure the effectiveness of social rights in employment, particularly where modern economic arrangements have outpaced legal analysis. This review article summarises Prassl’s essential argument: that an employing entity exists if it exercises any of a number of functions, such as starting an ending a contract, receiving the 'fruits' of labour, providing work and pay, or managing the internal or external enterprise. It then examines Prassl’s three contexts for its application: (1) sub-contracting or agency work, (2) private equity, and (3) corporate groups. Overall, Prassl's theory is consistent with the purposive approach to an employment relation, authoritatively required by Autoclenz Ltd v Belcher, and the modern theory of enterprise risk and responsibility. It represents a valuable advance of the global discussion on social rights, and the function of employing entities.

Keywords: social rights, employer, employing entity, effectiveness, bargaining power, purpose, sub contracting, agency work, private equity, corporate groups

JEL Classification: E20, F66, J00, J21, J38, J41, J42, J48, J50, K31, M54, M55

Suggested Citation

McGaughey, Ewan, Social Rights and the Function of Employing Entities (October 28, 2016). (2017) 38(2) Oxford Journal of Legal Studies 482; King's College London Law School Research Paper No. 2017-03. Available at SSRN: https://ssrn.com/abstract=2860685

Ewan McGaughey (Contact Author)

School of Law, King's College, London; Centre for Business Research, University of Cambridge ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

HOME PAGE: http://kclpure.kcl.ac.uk/portal/ewan.mcgaughey.html

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
114
Abstract Views
478
rank
241,857
PlumX Metrics