An analysis of good faith as an underlying theme in the employment relationship
An analysis of good faith as an underlying theme in the employment relationship
This thesis concentrates on the analysis of duties owed between employer and employee. In Chapter 1 it takes as its starting point the premise that the employment relationship has never been firmly based on contractual concepts. The Chapter examines the paternalistic and feudal notions that dominated the gestation of labour law. Chapter 2 proffers a working definition of good faith. This is achieved by drawing on the related concept of fiduciaries and the American conceptualisation of good faith dealings.Chapter 3 examines the role played by implied terms. It is argued that the implication of terms is not so much based on agreement as rooted in the judicial presumptions identified in Chapter 1. The concept of good faith is cited most frequently in relation to confidentiality and fidelity; the subject of Chapter 4. It is seen that, whatever the technicalities of the duty of confidentiality, the duty of fidelity once again operates as a trawl for all manner of non-contractual duties.Chapter 5 continues the theme set in Chapter 3, analysing the duties incumbent on the employer in the incorporation and variation of terms. The application of strict contract theory is seen to be wanting when set against the far reaching duty of co-operation expected of the employee. Chapter 6 develops this point and focuses on determining when an employer can be held to have repudiated the contract, with particular emphasis on the contractual analysis of constructive dismissal actions.The conclusion of this thesis is that whilst good faith is not an overriding principle in the determination of employment duties, it has and does stand as an underlying theme in the analysis of the relationship; albeit subject to an undefined and piecemeal application.
University of Southampton
1988
Holland, James Antony
(1988)
An analysis of good faith as an underlying theme in the employment relationship.
University of Southampton, Doctoral Thesis.
Record type:
Thesis
(Doctoral)
Abstract
This thesis concentrates on the analysis of duties owed between employer and employee. In Chapter 1 it takes as its starting point the premise that the employment relationship has never been firmly based on contractual concepts. The Chapter examines the paternalistic and feudal notions that dominated the gestation of labour law. Chapter 2 proffers a working definition of good faith. This is achieved by drawing on the related concept of fiduciaries and the American conceptualisation of good faith dealings.Chapter 3 examines the role played by implied terms. It is argued that the implication of terms is not so much based on agreement as rooted in the judicial presumptions identified in Chapter 1. The concept of good faith is cited most frequently in relation to confidentiality and fidelity; the subject of Chapter 4. It is seen that, whatever the technicalities of the duty of confidentiality, the duty of fidelity once again operates as a trawl for all manner of non-contractual duties.Chapter 5 continues the theme set in Chapter 3, analysing the duties incumbent on the employer in the incorporation and variation of terms. The application of strict contract theory is seen to be wanting when set against the far reaching duty of co-operation expected of the employee. Chapter 6 develops this point and focuses on determining when an employer can be held to have repudiated the contract, with particular emphasis on the contractual analysis of constructive dismissal actions.The conclusion of this thesis is that whilst good faith is not an overriding principle in the determination of employment duties, it has and does stand as an underlying theme in the analysis of the relationship; albeit subject to an undefined and piecemeal application.
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Published date: 1988
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Local EPrints ID: 460780
URI: http://eprints.soton.ac.uk/id/eprint/460780
PURE UUID: a12fb8dc-d1a0-4063-91c7-7aca6bec878f
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Date deposited: 04 Jul 2022 18:29
Last modified: 04 Jul 2022 18:29
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Author:
James Antony Holland
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