AbstractIn modern employment relations there has been an increased practice by employers to provide their employees with formal statements including company manuals, work rules, policies, and collective agreements. These ostensibly non-contractual documents, which are ‘voluntary’ or ‘unilaterally’ introduced by the employer, may contain, inter alia, promises of benefits and entitlements such as an equal opportunity policy, an enhanced disciplinary procedure, and redundancy and bonus schemes. The question in each case is whether these promises can create legal entitlement and are therefore enforceable.
The legal approach in employment law to voluntary promises has not been able to provide a coherent approach that responds appropriately to the employee’s reliance upon the promise and their dignity, on the one hand, and the employer’s business efficiency and the need to protect its business interests, on the other. There is limited research on the legal effect of such promises that operates outside an explicitly contractual framework. Conversely, there is a strong indication that the US legal approach, which shares similar contractual legal framework tools with the UK, has developed a more cohesive approach in relation to such promises. Yet, there is a lack of research in terms of a comparative study on the legal approach to promises, in both UK and US employment law. Thus, the focus of this research is not limited to what constitutes an enforceable promise in English employment law but extends to how English courts can achieve a coherent legal approach to voluntary promises where both parties’ interests and expectations are appropriately balanced.
To achieve this aim, this thesis will examine not only the situation in England but also three representative jurisdictions in the United States, namely Florida, California, and Michigan, which adopt three different approaches to voluntary promises. While the State of California developed a model via the unilateral contract analysis, the State of Michigan adopted the principle of legitimate expectation model (akin to that recognized in public law in England). Florida, however, remained loyal to the orthodox bilateral contract approach and, in a more similar trend, to the English approach.
The contribution of this thesis is, therefore, not limited to exploring the question of what constitutes an enforceable promise in English employment law or highlighting that the current approaches adopted by English courts have been incoherent, but also explores any possible development that may be open to English courts to adopt and maintain a coherent approach. This possibility will be addressed by examining the adoption of either a unilateral contract approach to voluntary promises or the adoption of public law principles, via the doctrine of legitimate expectation as a further development of the implied duty of trust and confidence, which can be injected into the private law of employment. It will further examine whether the US legal approach has achieved the desired coherence in its legal approach to these voluntary promises, or whether there are theoretical principles in English law, through contract law or public law principles, that could achieve a more coherent approach. It will show how adopting the doctrine of legitimate expectation, as a principle derived from public law, in employment law and thereby recognizing the hierarchy of interests that employees may have, based on proportionality, could resolve the incoherent approach to voluntary promises.
|Date of Award||Jun 2014|
|Supervisor||Barry Hough (Supervisor) & James Hand (Supervisor)|