The modern employee : managerial challenges to legal intellections

Abstract

The employment relationship, a child of achaic and medieval English law of master and Servant, arises in law in circumstances where the Master has control over his Servant. Although the factual basis of control may have been true in times of yore - apprenticeship contracts being the archetypal kind - the element of control began to erode gradually, but surely. despite the Industrial Revolution and its emphasis on work specialisation and division of labour, the test seemed to have survived extinction - but only just. The advent of the 20th century - shift of knowledge from employer to employee and the recognition of management studies as a discipline - did little to support the anachronistic legal concepts of control. The problem is that, while the law looked to the past for guidance, management studies was more firmly rooted to reality and practice, and was progressive and forward-looking. The reality of the workplace was not some dusty case taken from library shelves, but something that was vibrant and changing: worker autonomy, profit sharing, decentralisation of management hierarchy - to name a few - are the challenges to the modern employment relationship. Unfortunately, the law - past the age of child bearing - has not been able to keep pace with new developments. This paper aims to show that the legal analysis of the employment relationship needs reassessing, and change if the law is to keep up with the realities of the workplace. The law must never be too conceited to disregard other discipline that might illumine its path for the future.