IV. Sources of flexibility
B. The contract of employment and the common law system in Ireland
Within the Anglo-Saxon common law system the contract of employment has traditionally been treated in a different way to normal commercial contracts. For example the contract was considered to be concluded between master and servant, and not equals, and specific performance of the contact, including the possibility of reinstatement after a dismissal, was almost unknown. Contracts of employment could be changed unilaterally and, if that unilateral change was accepted by the other side, a new contractual relationship came into existence. If either side refused to accept the proposed change the option was for the proposed change to be withdrawn or for the contract to be terminated. Special protection was given to officers within the common law system. These were defined as employees who were especially important within a company, such as company secretaries or employees who were defined as officers under statute law. Such officers could sue for wrongful dismissal with the remedy normally being payment for reasonable notice. While legislation has progressively modified the common law system, introducing the terms employer and employee in place of master and servant as early as 1876, much employment legislation is interpreted in terms of underlying common law concepts rooted in the contract of employment. In relation to changes in the contract of employment brought about by flexible working, the position has been set out in an IBEC publication as follows:
It is the contemporary view that variations in the contract [of employment] can only legitimately occur upon the mutual agreement of both parties that the original contract shall be terminated and substituted by a new contract. The employer may not unilaterally vary the terms of the contract to the disadvantage of the employee. Unilateral variation may however be allowed if specifically provided for in the original contract of employment. Unilateral variation carried out on the strength of such a provision might be more successfully executed when accompanied by consideration [payment]. (Courtney, 1994, p.14).