82 SITUATING HUMAN RESOURCE MANAGEMENT
The emergence of the modern law of employment
The common law of employment has traditionally had little concern for eth-
ical issues. On the conventional view, the parties to the wage–work bargain
strike their bargain through a process of negotiation and agreement. Provided
the resultant agreement met certain minimal requirements as to form and
substance, the law had no further interest in the manner in which the contract
was formed, or in its content (Creighton, Ford, and Mitchell 1993: ch. 3;
Creighton and Stewart 2005: 277–9; Macken et al. 2002: ch. 3).
Consistent with this view, it was of no concern to the common law that,
other than in highly exceptional circumstances, the parties to the employment
relationship stood in profoundly unequal bargaining positions relative to one
another, or that their agreement bore more heavily upon one party rather
than the other. So long as the agreement was not induced by fraud, duress,
or misrepresentation, the common law proceeded on the basis that the parties
must live by their bargain. Furthermore, the imperative of working or starving
was never seen as vitiating the bargain between an employer and a would-be
employee (Kahn-Freund 1954: 45–6):
...the common law has in general ignored the social and economic inequality of
contracting parties, eg of the individual employer and the individual employee. It
has acted on the principle that an adult person is bound by his contractual promises,
however much his legal freedom to contract or not to contract may have been fictitious
as a result of pressing economic necessity. Those principles of law which protect the
economically weaker side against exploitation had to be grafted upon the common law
by legislation.
The situation described by Kahn-Freund is a logical consequence of the appli-
cation of the principles of laissez-faire contractualism to work relationships—
whether between master and servant, employer and employee, or principal
and independent contractor (Brooks 1988; Collins 1990; Deakin 1998, 2000;
Freedland 1995, 2003: 13–26). However, it is important to appreciate that
matters were not always thus.
Work relationships in pre-industrial society were governed by legal rules
and assumptions that owed more to family law than to what modern observers
would recognize as the law of employment. The ‘servant’ was under the domi-
nation and control of the ‘master’ in much the same way as Roman slaves were
under the domination and control of the paterfamilias, and as female and non-
adult members of families in pre-industrial society were under the domination
and control of the family head. This meant that the servant was subject to
the discipline—physical and moral—of the head of family. They often lived
with, and as a member of, the family. They were entitled to certain of the
benefits of family membership—including the right to be looked after in times
of sickness and ill health (seeM’Keatingv.Frame1921 SC 382). The rights