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The employment contract is a common piece of organisational infrastructure to govern working relationships - every context of employment must agree one. And yet it is among the most difficult structures for organisations to innovate single-handedly.
We have embarked on a collective exploration of how to transform the employment contact for alternative forms of organising. Nonetheless, we are not here radically changing the rules of the system; we are making a tweak within the existing frameworks of employment law, i.e. operating in the space that we call ‘Between the Rules’.
Relationships, understanding and trust between people are not generally formed primarily via a piece of paper or through text; they are often more shaped by a variety of connections and conversations over time.
So why are we focusing - in this piece of work - on contracts rather than, say, on culture?
Many groups, teams, organisations are successfully experimenting with and shifting their culture, but many (most?) civic organisations working broadly for ‘public good’ rarely have the budget, bandwidth and time to create a new legally compliant and ambitious contracts. There is also rarely financing available for the specific work of creating the formal structures that establish and reinforce systems of care at work.
Often, a contract is tailored by downloading a template and tweaking it, perhaps with a final look by a lawyer. And yet, the standard form employment contract is codified with conventions such as fixed hierarchies, top-down governance, employer protectionism, punitive behavioural management and other governance norms that are in contradiction to the broader intention of public good creation. This often means offsetting disproportionate risk to employees (or, indeed, employers) until a new form of employment contracting can be created.
We think that contracts are thus more effectively rewired through efforts of a group and converted into open resources that can enable all of us to do this work at lower cost and higher craft.
We see employment contracts as a critical site of both imagination and **execution of relationship and culture, not because contracts can create positive relationships or culture in and of themselves, but because they also codify and reinforce them. They influence and set expectations for the way in which we choose to conduct ourselves in the working environment (both in terms of the working culture but also in terms of a legal relationship):
If they are focused on competition, they reinforce competition;
If they are coded in power and control, they exude power and control;
If they are coded as a shared endeavour, they are more likely to influence behaviour for mutually reinforcing shared endeavour.
The contemporary, standard form employment contract codifies a particular version of the relationship between employer and employee and owes much of its features to 20th century workers’ rights movements, social legislation and contract law. As the diagram below illustrates, labour relationships have evolved over time and with them, their legal basis. As our own working relationships evolve, so must the legal ‘dark matter’ behind them and we must build new frameworks and understanding. Employment contacts can evolve into a new “beyond the 21st century” iteration as the diagram below suggests.
A (simplified) historic timeline of labour relationships in law.
<aside> <img src="/icons/search_orange.svg" alt="/icons/search_orange.svg" width="40px" /> There are a number of laws in England and Wales that regulate certain elements of the employment relationship even if absent from a formal employment contract (e.g., certain IP rights being owned by the employer, an employer's duty to provide a safe working environment, an employee's duty of fidelity, minimum paid leave or minimum notice periods, and others).
This is where the jurisdiction of employment becomes important. A country's view of the employment relationship and the rights afforded under its legal system, as well as “soft laws” (e.g. guidance and practice in terms of diversity, wellbeing and flexible working) can impact individual organisations and the people they hire.
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<aside> <img src="/icons/error_orange.svg" alt="/icons/error_orange.svg" width="40px" /> An employment contract can be legally formed and enforceable without writing i.e., an oral contract.
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