The managerial prerogative and the employee's duty to work: a comparative study of functional flexibility in working life

Abstract

This paper presents a discussion of the general reasons for conducting comparative research, the need for a socio-legal functional approach and the motives for subjecting Swedish, English and German labour law to study. Anna Christensen's theory of the normative field of law is discussed and applied to the field of comparative labour law research. The focus of the research is the legal regulation of the managerial prerogative (especially the employer's right to direct and allocate work) in the light of the increasing trend towards greater flexibility in employment.

Keywords:

• Comparative labour law
• labour market flexibility
• theory of the normative field of law
• managerial prerogative
• industrial relations

Acknowledgements

I am deeply indebted to Professor Anna Christensen, who sadly passed away in March 2001, not only for her development of the theory of the normative field of law, but also for being such an outstanding academic and intellectual role model and an interested and supportive senior colleague. I would also – as always – like to thank my supervisor Professor Ann Numhauser-Henning for her ability to inspire with enthusiasm and her interesting and valuable comments. All errors remain the responsibility of the author.

Notes

Mia Rönnmar, Faculty of Law, Lund University, Sweden (e-mail: [email protected]).

1 The labour-market trends mentioned here can thus generate new rights for employees. The right to education is one of these. In the knowledge society, access to education and development of competence is crucial for an employee's future prospects in the company, as it is in the labour market as a whole. For a more extensive analysis of a future right to education within the employment relationship (but also of the general strength and functioning of the Swedish employment protection in the knowledge society), see Rönnmar (2001a).

2 Cf. also the following words of Rogowski: ‘A theoretical approach … is concerned with constructing comparative dimensions based on theoretical hypotheses. It takes the contributions of legal and social theory seriously and uses them as a source of insights into the foundations of law’ (1996: 222).

3 Awareness – and counteraction – of these common practical difficulties can naturally be gained from writings on comparative research methodology. In addition, I have found research visits to foreign universities and institutes and international research contacts particularly valuable. Apart from inspiring creativity they also provide important help and some form of ‘insurance’ against misunderstandings and mistakes.

4 EC law (being influenced by German industrial relations and labour law) nowadays frequently employs the dual-channel model, for example, in the directives on transfers of undertakings, collective dismissals and European works councils.

5 Cf. also the distinction made by Bamber (1992) between Type I countries (such as England, the United States and Australia), with adversarial industrial relations favouring numerical flexibility, and Type II countries (such as Sweden and Germany), with consensual industrial relations favouring functional flexibility.

6 Cf. the following words of Bamber and Lansbury: ‘A full understanding of employment relations requires an interdisciplinary approach that uses analytical tools drawn from several academic fields including history, sociology, psychology, politics, law, economics, accounting and other elements of management studies’ (1998: 1).

7 Anna Christensen's theory also forms one of the theoretical bases of the research programme Normative Development within the Social Dimension (Norma) at the Faculty of Law at Lund University, to which I belong (cf. Norma, 1996; www.jur.lu.se./norma).