Consent in Contracts of Employment

Abstract

This article considers the problem of questionable consent in contracts of employment. We suggest that in the context of employment, consent should be understood as a continuum that includes some level of coercion and some level of choice. We show that despite labour law's assumption of inequality of bargaining power, consent is still legally valid in various contexts of employment. We propose some solutions: procedural rules increasing the chance of free and informed consent, and substantive standards restricting recognition of consent due to public policy considerations. The ‘menu’ we put forward includes some solutions already recognised by law (in some specific contexts) and we also propose some new ones. We then demonstrate how the proposed solutions, both procedural and substantive, can be applied in common contexts where employee consent might be put into question: variation of contractual terms, waiver of access to courts, waiver of legislated rights, waivers related to human rights, and implicit waivers of employee status.