Uses and Misuses of ‘Mutuality of Obligations’ and the Autonomy of Labour Law

Abstract

This paper critically reviews the way in which English judicial decisions have developed the labour law concept of ‘mutuality of obligations’. The paper suggests that the primary purpose of this concept, as originally developed by Mark Freedland, was intended to be that of bringing to the fore of labour contract law analysis some relational aspects of work contracts that traditional contract law elements, such as contractual consideration, had typically failed to acknowledge. It argues that subsequent English court judgments have instead used mutuality as both i) a synonymous term of contractual consideration and ii) a pre-requisite of contractual continuity (in a vast range of personal work relations) in a way that clearly defeats the purpose of the concept as originally intended and unduly and adversely affects workers in precarious and atypical employment relations.