The notion of the employer in multilateral organisational settings

This thesis explores the notion of the employer in English employment law. It seeks to develop a functional reconceptualisation of that notion in the hope of overcoming the theoretical and practical problems resulting from the tensions inherent in the current approach. The first part of the thesis analyses the notion of the employer as counterparty to the contract of employment. Two conflicting strands emerge: the employer is simultaneously identified as a single party to a bilateral contract (the unitary strand) and defined through the exercise of a range of employer functions (the multi-functional strand). 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. Modern economic developments, from the rise of employment agencies and service companies to corporate groups and Private Equity investors, have however increasingly led to the joint exercise of such functions across multiple entities. The second part illustrates the practical implications of these developments: regulatory obligations are placed on inappropriate entities, and workers may even find themselves without recourse to any employment law protection. An additional chapter compares this situation with the notion of the employer in German law, where a sophisticated apparatus has been developed in order to address the particular challenges of employment in multi-entity scenarios, in particular in corporate groups. On the basis of these observations the final part of the thesis then proposes a reconceptualised notion. The employer is defined as the entity, or combination of entities, exercising functions regulated in a particular domain of employment law. Each of the two strands of the current notion is addressed in turn to demonstrate how this more openly multi-functional approach addresses the rigidities of the current notion without abandoning an underlying unitary conceptualisation. It is hoped that the resulting notion of the employer will be able to place employment law obligations on the entity, or combination of entities, exercising the relevant employer functions, regardless of the formal legal organisation of the enterprise in question.