The Concept of the Employer

Abstract

Abstract This work develops a functional concept of the employer in the hope of overcoming the theoretical and practical problems arising from the ascription of responsibility in fragmented employment settings. A first part analyses two conflicting strands in the received concept of the employer, simultaneously identified as a single party to a bilateral contract and defined through the exercise of a range of employer functions. As a result of this tension, full employment law coverage is restricted to a narrow paradigm scenario where a single legal entity exercises all employer functions, and fails to grapple with the rise of complex work arrangements, from temporary agency work to corporate groups and Private Equity investors. The second part illustrates the practical implications of these developments: regulatory obligations are placed on inappropriate entities, and workers may find themselves without recourse to employment law protection. A subsequent chapter compares this situation with German law, where a sophisticated apparatus has been developed to regulate employment in corporate groups. The final part reconceptualizes the employer, defining it as the entity, or combination of entities, exercising functions regulated in a particular domain of employment law. Each of the two strands of the received concept is addressed in turn to demonstrate how this openly multi-functional approach overcomes the rigidities of the current concept without abandoning an underlying unitary definition. As a result, employment law obligations fasten on the entity, or combination of entities, exercising the relevant employer functions, regardless of the formal legal organization of the enterprise in question.

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