Good Faith in the Employment Eelationship: a Comparison between Common Law and Civil Law Countries

Abstract

The paper analyses the extent to which several common law and civil law countries recognise and operate good faith in the individual employment relationship. This entails a comparative analysis of the ideas, origins, developments and scope of good faith in the US, the UK, New Zealand, Germany and France. On the civil law side, Germany and France demonstrate that good faith is all-pervasive and operates at all stages of the employment relationship. On the contrary, good faith is almost absent in US employment law and attenu-ated in the UK. Good faith fragmentarily applies to the stages of the employment relationship in these com-mon law countries. However, New Zealand has introduced statutory good faith obligations in 2000, which apply to all aspects of the employment environment and of the employment relationship. In this regard, the other common law countries could learn something from New Zealand. The conventional wisdom that civil law countries rely more on legislation and that common law countries rely more on markets and contracts is challenged. However, although the supposed differences begin to blur, good faith is more entrenched in the civil law countries. Given the structural imbalance be-tween employer and employee, good faith is much more important in terms of employee protection, although the underlying concept of good faith is mutuality. The civil law approach is preferable in terms of employee protection since good faith provides an underlying safety net.