ETHICAL EMPLOYMENT PRACTICES AND THE LAW 83and duties of the parties owed more to ‘status’ than to ‘contract’. Often, the
only significant contractual element in the relationship was the initial decision
to create the relationship, and the payment of wages and/or the provision of
benefit in kind as a quid pro quo for the rendering of service. The incidents of
the relationship were the product of the general principles of the law of master
and servant, with its strong ties to family law (Kahn-Freund 1977: 508), rather
than the agreement—express or implied—of the parties (Kahn-Freund 1967,
1977). The ethical underpinning of such relationships was one of high trust,
but little individual autonomy. The rights and interests of the individual were
subordinated to those of the family unit, which were in turn the domain of the
head of the family. However, as indicated, the traffic was not all one way. The
servant, as quasi-family member, enjoyed at least some of the rights of a full
family member, as well as the responsibilities (Creighton, Ford, and Mitchell
1993: 18–24, 28–32; Fox 1974: ch. 4; Selznick 1969: ch. 4).
Whatever its virtues in a pre-industrial context, this model was not well-
suited to the needs of early industrial society. The traditional model was
premised on geographical and social stability. Industrialization required geo-
graphical mobility, and both required and engendered social instability. The
new processes of mass production in factories required large numbers of
workers of varying degrees of skill. Labour needed to be dispensable, both in
response to market fluctuations and to the pace of technological change. The
high levels of mutual commitment that characterized the traditional master–
servant relationship could not readily accommodate these imperatives. Nor
were they suited—at least from the perspective of the manufacturer—to the
high levels of work-related injury and disease that characterized the early
stages of industrialization. In bald terms, there was a strong perception in
Britain in the late eighteenth and early nineteenth centuries that if mill owners
had to bear the cost of injuring and maiming workers in the same way as
the master in the traditional ‘family model’ had to bear the cost of sick and
injured servants, then profitability, competitiveness, and innovation would be
significantly impaired. Sensitivity to this issue is clearly evident in the emer-
gence of the doctrine of common employment, which had the effect that an
individual worker who had been injured as a consequence of the negligent act
of a fellow worker (common employee) could not recover damages from their
employer either in tort or in contract—seePriestlyv.Fowler(1837) 3 M&W 1;
Hutchinsonv.York, Newcastle and Berwick Railway Co(1850) 5 Exch 343 (see
further Johnstone 2004a: 48–52, and the sources cited therein).
These considerations help explain the fact that, in the course of the late
eighteenth and the nineteenth centuries, the traditional law of master and
servant was infused with principles derived from the newly emergent law
of contract to create the modern Anglo-Australian model of the contract of
employment. Ethical considerations had little part in all of this. The mar-
ket reigned supreme. Would-be employees wanted/needed work. Employers