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Tag: employee

Leases and the Law of Domestic Service: Delving into Scotland’s Employment Law HistoryAn image of an old-fashioned barn with a broom and bucket.

Leases and the Law of Domestic Service: Delving into Scotland’s Employment Law History

Published 26th June 2024

by Dr. Alice Krzanich, Lecturer in Law and Legal History, University of Aberdeen

The history of employment law in Scotland is an under-researched topic. While some aspects of law and labour in Scotland’s past have been examined, others have been barely touched at all. Moreover, while many elements of employment law in modern-day Scotland are similar or identical to those in England and Wales, Scots law has its own distinct history concerning labour and employment. This is due to Scotland’s unique legal institutions and juristic traditions. There is consequently a need to investigate the history of employment law in Scotland more fully and to tease out some of the themes of its development.

This blog entry illustrates some of that distinct legal heritage by examining the employment of domestic servants in early nineteenth-century Scotland. In particular, it shows how Scots contract law regulating domestic service shared certain analytical features with the law of leases in the period c. 1800–1850. This may seem surprising, as the employment of domestic servants may (outwardly at least) seem to have little directly in common with leases of property. Yet this analysis will reveal commonalities between the two, resulting from the influence of Roman law alongside customary practices. Moreover, the law of leases was not the only area of private law that the contract of domestic service shared connections with in the nineteenth century; it was also often conceived as part of the law of familial obligations. This raises further questions about the nature of historical Scottish master-servant law, which this analysis will highlight.

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‘My Hands Are Tied’: Unilateral Variation of the Contract of EmploymentA person signing a contact in front of another person

‘My Hands Are Tied’: Unilateral Variation of the Contract of Employment

Published 28th March 2024

by David Cabrelli, Professor of Labour Law, University of Edinburgh

Should the law lend legal validity to a clause in a contract that empowers one of the parties to unilaterally vary its terms? And should there be any difference in the applicable rule if the contracting party who has the power to vary is in a superior bargaining position, such as an employer in an employment contract? These are the two principal questions that this post will consider.

In the view of John Stuart Mill, everyone should have the right to consent (or not to consent) to change their mind in the future and to have that position respected by the law.[1] Up to a point, Mill’s position reflects the current law, since the point of departure is that contracts can only be varied by mutual consent, irrespective of whether the bargain concluded is a commercial contract[2] or employment contract.[3] However, there is an exception. For example, in the case of a unilateral variation clause – where the employee has exercised their autonomy to agree to a provision that permits the employer to change the terms of the contract of employment without the approval of the employee – contract law recognises that mutual consent is superfluous.[4] This is controversial for the reason that the employee is in an unequal bargaining position vis-à-vis the employer as well as subordinate to the employer and subject to the latter’s commands. Thus, there is the temptation to reform the law to invalidate unilateral variation clauses. But in this post, I make the claim that this temptation should be resisted, albeit not as a matter of principle, but for doctrinal reasons.

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