Treatment of Employees in Corporate Insolvencies: An International Human Rights Law Perspective

Abstract

Formal insolvency proceedings are usually characterised by adverse consequences on a broad range of stakeholders of the insolvent company. Affected stakeholders typically range from directors, shareholders, employees, counterparties, creditors to tort victims. Employees are usually regarded as being among the most vulnerable stakeholders. As involuntary creditors, employees do not assume the risk of their employers’ distress and inability to pay wages. Unlike trade creditors, employees do not extend credit to their employers, they do not have the capacity to ex ante factor in the risk of insolvency into their entitlements and are not positioned to negotiate for security or quasi security measures. Besides, it is common practice for some companies to have standardised employment contracts for employees. Employees are also considered vulnerable due to their inability to diversify their risks. Employees often have one employer at a time and typically depend on the employer as their sole source of income. Failure by the employer to pay pre-insolvency wages will have far-reaching implications on employees including impairing their ability to cater for basic needs such as food, shelter, healthcare etc. In contrast, trade creditors often transact with several counterparties asides the insolvent company thereby diversifying their risks.