Consent in Contracts of Employment

Maayan Niezna, Guy Davidov*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review


This article considers the problem of questionable consent in contracts of employment. We suggest that in the context of employment, consent should be understood as a continuum that includes some level of coercion and some level of choice. We show that despite labour law's assumption of inequality of bargaining power, consent is still legally valid in various contexts of employment. We propose some solutions: procedural rules increasing the chance of free and informed consent, and substantive standards restricting recognition of consent due to public policy considerations. The ‘menu’ we put forward includes some solutions already recognised by law (in some specific contexts) and we also propose some new ones. We then demonstrate how the proposed solutions, both procedural and substantive, can be applied in common contexts where employee consent might be put into question: variation of contractual terms, waiver of access to courts, waiver of legislated rights, waivers related to human rights, and implicit waivers of employee status.

Original languageAmerican English
JournalModern Law Review
StateAccepted/In press - 2023

Bibliographical note

Funding Information:
Elias Lieberman Professor of Labour Law, Hebrew University of Jerusalem. This research was supported by the Israel Science Foundation (grant no 1611/19). We thank Philippa Collins, Riccardo Del Punta and participants at workshops of the London Labour Law Discussion Group and the Bristol Centre for Law at Work for very helpful comments. All URLs last visited 28 February 2023.

Publisher Copyright:
© 2023 The Authors. The Modern Law Review © 2023 The Modern Law Review Limited.


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