The role of standards of review in labour law

Abstract

Employment rights may be expressed as (i) rules or (ii) standards (of review). This article probes the special role of standards of review in addressing the internal vulnerabilities to which employees are exposed in their individual employment relationship. The principal argument is made that the inherent properties of standards of review of managerial behaviour are such that they are better suited, and lend themselves more, to the policing of employmentrelationship-specific failures than fixed rules: As such, standards do much more than regulate the labour market generally. The central claim made in this article is designed as a rejoinder to the influential descriptive and normative propositions that labour laws are, or ought to be, concerned only with ensuring the maintenance of a properly functioning and efficient labour market, and that any labour laws that go beyond this market-correcting role are misconceived and unwarranted.