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'Voluntary' Promises in Employment Law; a Study of the Legal Approach

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'Voluntary' Promises in Employment Law; a Study of the Legal Approach ‘Voluntary’ Promises in Employment Law; a Study of the Legal Approach in the United Kingdom & the United States of America Muayad Kamal Mohammad Hattab L.L.B. Al Najah University – Palestine L.L.M. University of Glasgow – UK Supervisor: Professor Barry Hough A Thesis Submitted for the Degree of Doctor of Philosophy in Law at University of Portsmouth June 2014 ABSTRACT In modern employment relations there has been an increased practice by employers to provide their employees with formal statements including company manuals, work rules, policies, and collective agreements. These ostensibly non- contractual documents, which are ‘voluntary’ or ‘unilaterally’ introduced by the employer, may contain, inter alia, promises of benefits and entitlements such as an equal opportunity policy, an enhanced disciplinary procedure, and redundancy and bonus schemes. The question in each case is whether these promises can create legal entitlement and are therefore enforceable. The legal approach in employment law to voluntary promises has not been able to provide a coherent approach that responds appropriately to the employee’s reliance upon the promise and their dignity, on the one hand, and the employer’s business efficiency and the need to protect its business interests, on the other. There is limited research on the legal effect of such promises that operates outside an explicitly contractual framework. Conversely, there is a strong indication that the US legal approach, which shares similar contractual legal framework tools with the UK, has developed a more cohesive approach in relation to such promises. Yet, there is a lack of research in terms of a comparative study on the legal approach to promises, in both UK and US employment law. Thus, the focus of this research is not limited to what constitutes an enforceable promise in English employment law but extends to how English courts can achieve a coherent legal approach to voluntary promises where both parties’ interests and expectations are appropriately balanced. To achieve this aim, this thesis will examine not only the situation in England but also three representative jurisdictions in the United States, namely Florida, California, and Michigan, which adopt three different approaches to voluntary promises. While the State of California developed a model via the unilateral contract analysis, the State of Michigan adopted the principle of legitimate I expectation model (akin to that recognized in public law in England). Florida, however, remained loyal to the orthodox bilateral contract approach and, in a more similar trend, to the English approach. The contribution of this thesis is, therefore, not limited to exploring the question of what constitutes an enforceable promise in English employment law or highlighting that the current approaches adopted by English courts have been incoherent, but also explores any possible development that may be open to English courts to adopt and maintain a coherent approach. This possibility will be addressed by examining the adoption of either a unilateral contract approach to voluntary promises or the adoption of public law principles, via the doctrine of legitimate expectation as a further development of the implied duty of trust and confidence, which can be injected into the private law of employment. It will further examine whether the US legal approach has achieved the desired coherence in its legal approach to these voluntary promises, or whether there are theoretical principles in English law, through contract law or public law principles, that could achieve a more coherent approach. It will show how adopting the doctrine of legitimate expectation, as a principle derived from public law, in employment law and thereby recognizing the hierarchy of interests that employees may have, based on proportionality, could resolve the incoherent approach to voluntary promises. II DECLARATION Whilst registered as a candidate for the above degree, I have not been registered for any other research award. The results and conclusions embodied in this thesis are the work of the named candidate and have not been submitted for any other academic award. Muayad K.M. Hattab III DEDICATION TO MY BELOVED WIFE, PARENTS AND CHILDREN You are the source of my faith and hope and my inspiration to lead my life meaningfully. This thesis could not have been complete without your unconditional love and patience, encouragement, and support. I dedicate this work to My Wife Mais F. Aqel My Father Kamal M. Hattab My Mother Nahidah H. Shanteer My Daughter Sandy M.K Hattab My Son Yousef M.K Hattab & To those who are fighting for justice, no matter who and where they are. IV ACKNOWLEDGEMENT First and foremost I will thank Almighty God, the compassionate, the almighty Merciful, who in His infinite mercy has guided me to complete this PhD work. The success of this thesis is attributed to the extensive support and assistance from my supervisor Prof Barry Hough and my second supervisor Mr James Hand for their encouragement, guidance, and support throughout this work. I could not express enough my grateful gratitude and sincere appreciation for their invaluable advice and the highly enjoyable challenge and discussion on every part of the thesis. I am also grateful to the speedy, constructive, and thorough responses and comments I was given each time I had a question or needed advice. I owe my deepest gratitude my wife Mais Aqel who gave me support and understanding through this work. She was always able to push me through the difficult periods of the study and always motivated me. This work would not have been completed without her patience and understanding and full encouragement and support. I am also thankful to my children Sandy and Youse who made me smile at the end of a hard day. I am also most thankful to my father Mr Kamal Hattab and mother Ms Nahidah Shanteer who kept me going with their unwavering faith and confidence in my abilities, which motivated me enormously. Their unconditional love and endless prayers have been invaluable. I am also thankful to all of my other family members and friends who gave me great support during this work Finally, I would like to extend huge, warm thanks to my colleagues Ahmad Al- Husban and Mishari Shallhoub for their humorous and friendly support and making me laugh. We shared many happy times, and I shall cherish the memories. Muayad K.M. Hattab V Table of Content TABLE OF CONTENTS ABSTRACT____________________________________________________________________________ I DECLARATION ____________________________________________________________________ III DEDICATION ______________________________________________________________________ IV ACKNOWLEDGEMENT ___________________________________________________________ V TABLE OF CONTENTS___________________________________________________________ VI INTRODUCTION TO THE THESIS _____________________________________________ 1 INTRODUCTION __________________________________________________________ 2 STRUCTURE AND OUTLINE _________________________________________________ 7 CHAPTER ONE ___________________________________________________________ 8 CHAPTER TWO __________________________________________________________ 9 CHAPTER THREE _________________________________________________________ 9 CHAPTER FOUR _________________________________________________________ 11 CHAPTER FIVE _________________________________________________________ 11 CHAPTER SIX ___________________________________________________________ 12 CHAPTER SEVEN ________________________________________________________ 13 CHAPTER ONE ___________________________________________________________________ 14 THE DEVELOPMENT OF CONTRACT, RELATIONS, AND THEORY IN EMPLOYMENT LAW 1.1 INTRODUCTION _______________________________________________________ 15 1.2 THE IMPORTANCE OF CONTRACT LAW ____________________________________ 16 1.3 HISTORICAL OUTLINE __________________________________________________ 20 1.4 THE CONTRACT IDENTITY AND DEVELOPMENT OF EMPLOYMENT CONTRACT ____ 22 1.5 THE EMERGENCE OF THE DUTY OF TRUST AND CONFIDENCE _________________ 28 1.6 DEVELOPMENT OF EMPLOYMENT CONTRACT ______________________________ 33 1.7 CONTRACT THEORIES __________________________________________________ 35 1.7.1 WILL THEORIES ______________________________________________________ 36 1.7.2 RELIANCE THEORY ____________________________________________________ 38 VI Table of Content 1.7.3 EFFICIENCY THEORY __________________________________________________ 42 1.7.4 SUBSTANTIVE FAIRNESS THEORY _________________________________________ 43 1.7.5 BARGAIN THEORY ____________________________________________________ 45 1.8 CONCLUSION _________________________________________________________ 47 CHAPTER TWO ___________________________________________________________________ 50 2 THE FORMATION OF BINDING OBLIGATION UNDER COMMON LAW OF CONTRACT 2.1 INTRODUCTION _______________________________________________________ 51 2.2 OFFER AND ACCEPTANCE _______________________________________________ 54 2.2.1 INTRODUCTION _______________________________________________________ 55 2.2.2 CREATING AN OFFER __________________________________________________ 57 2.2.3 ACCEPTANCE OF THE OFFER ____________________________________________ 61 2.3 CONSIDERATION ______________________________________________________ 63 2.3.1 INTRODUCTION _______________________________________________________ 63 2.3.2 MEANING AND DEFINITION _____________________________________________ 66 2.3.3 PERFORMANCE UNDER
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