Social Rights and the Function of Employing Entities†

Abstract

In The Concept of the Employer (2015) Jeremias Prassl develops an elegant model to find who bears labour and employment law duties. It offers a logical complement to the multi-factor test to determine who is an ‘employee’. This is meant to ensure the effectiveness of social rights in employment, particularly where modern economic arrangements have outpaced legal analysis. This review article summarises Prassl’s essential argument: that an employing entity exists if it exercises any of a number of functions, such as starting an ending a contract, receiving the ‘fruits’ of labour, providing work and pay, or managing the internal or external enterprise. It then examines Prassl’s three contexts for its application: (1) sub-contracting or agency work, (2) private equity, and (3) corporate groups. Overall, Prassl’s theory is consistent with the purposive approach to an employment relation, authoritatively required by Autoclenz Ltd v Belcher, and the modern theory of enterprise risk and responsibility. It represents a valuable advance of the global discussion on social rights, and the function of employing entities.