The Role of Standards of Review in Labour Law
Forthcoming, Oxford Journal of Legal Studies. Published by Oxford University Press
36 Pages Posted: 5 Feb 2019
Date Written: February 4, 2019
Employment rights may be expressed as (i) rules or (ii) standards of review. The insight that it is not credible that all labour laws are directed towards the correction of general labour market failures is taken as a point of entry to engage in further research into standards. This paper probes their special role in addressing the internal vulnerabilities to which employees are exposed in their individual and specific employment relationship. The principal argument is made that unlike fixed rules, standards of review of managerial behaviour police employment-relationship specific failures, rather than the labour market generally. The central claim made in this paper is designed as a rejoinder to the powerful descriptive and normative propositions that labour laws ought only to be concerned with ensuring the maintenance of a properly functioning and efficient labour market, and that any labour laws that go beyond this market-correcting role are misconceived and unwarranted.
Keywords: Labour Law, Employment Law, Employment Rights, Labour Rights, Standards, Rules, Standards of Review, Proportionality, Range of Reasonable Responses, Good Faith, Rationality Review, Intensities of Scrutiny
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