Rules and Standards in the Workplace: A Perspective from the Field of Labour Law

Abstract

Employment rights may be crafted as 'bright-line' rules or open-textured standards. Labour law scholarship has principally engaged with the significance of employment rights which are articulated as rules and whether it is preferable for such rules to be ascribed mandatory or default status. However, employment rights which are framed at a higher level of generality such as standards have not been examined in the same level of detail. Standards can be distinguished from rules by reference to the degree of precision and transparency of the employment right and can be divided into standards of conduct and standards of review. Standards of conduct direct commands to decision-makers such as employers whereas standards of review are addressed to adjudicators whose function it is to scrutinise the conduct of decision-makers. In the majority of cases, the intensity of scrutiny of decision-makers which is attached to both of these standards is the same, thus resulting in the conflation of the standards. However, on occasion, the level of scrutiny exerted by the adjudicator pursuant to the standard of review may be more, or less, acute than that attached to the standard of conduct. This article examines the rationales for such divergence and analyses what the degree of intensity of scrutiny attached to standards of conduct and standards of review reveals about employment rights. The paper finally erects a framework against which the argument about varying intensities of scrutiny can be given greater clarity and meaning by advancing a series of alternative possible ranges or spectra of standards of conduct and review.