Employment policies: a lesson from America

The purpose of this article is to examine the controversy surrounding the means by which promises become binding in employment law. The dilemma is exposed in the decisions of the courts in Taylor v Secretary of State for Scotland. The industrial tribunal and the Employment Appeal Tribunal were prepared to accept that entitlements could be created unilaterally: “ the evidence was that…..changes and additions to prison officers’ contracts were notified by circulars …” In the House of Lords, adherence to the orthodox contractual model was so strong that their lordships felt that, in accepting the contractual status of the equal opportunities policy, they were obliged to invent a finding of fact that the notification was subsequent to a negotiated variation. The absence of evidence of this assumed prior negotiation leaves exposed the de facto acknowledgment of unilateral creation of contractual entitlements. Such a development poses questions about the jurisprudential nature of promises in employment law and the rationale for their enforcement.