The freedom fallacy

It's time we threw out our notion of freedom as the mere absence of duress. A cursory look at the life of a cafe worker will tell you why.

Despite the rise in employment, British workers are suffering from a fundamental injustice at the heart of our law. While the Office of National Statistics informed us last week that employment has hit its highest point in a decade, working conditions have worsened and wages have seen a real terms cut of 3.5%. Companies such as Starbucks (which has recently ordered workers to sign new contracts agreeing to cuts in lunch breaks and sick pay) are able to impose ever more trying conditions on workers who have little choice but to agree. But this inequity is merely the symptom of a fundamental injustice at the heart of English law and flawed assumptions which underpin our society.

The legal issues here are basic. Employment law aside, this is a matter of contract. Usually to vary a contract one party must provide “consideration” i.e. give the party consenting to the variation something in return unless, as in the Starbucks case, the consenting party freely agrees.

But was the new Starbucks contract really freely agreed? The implicit choice presented to the employees was to accept the new contract or no longer have a job. The doctrine of duress protects those who are forced to contract against their will. But the conditions which must be satisfied to establish economic duress are stringent and the case of the Starbucks workers is unlikely to satisfy them. In a leading judgement Lord Denning said that mere “commercial pressure” would not suffice. Judges look for evidence of protest at the time, independent advice, steps taken by the injured party to void the contract and, importantly, the availability of other options. In the eyes of the law Starbucks’ employees did have another option: they could have left. 

But if this is what “free choice” boils down to, was that choice really free? With between 24 and 66 applicants for every job giving one up is not an easy choice to make. Molly (name changed), who sells me a latte and a cinnamon swirl every morning, would be unlikely to have a case in duress because, in theory, she had the choice not to sign it. But in reality the economic climate makes that choice a fiction. It’s easy to argue that this is simply about the workings of a free market: If people want jobs then those who have jobs to offer can decide their terms just as, if people want cakes, then bakers can name their price. Ironically the problem with this most individualistic of philosophies is that it ignores the plight of the individual. Whether you blame Labour overspending or Conservative callousness for our current economic circumstances, we can all probably agree that it’s not the fault of Molly in the New Street Starbucks. Yet every day circumstances far beyond the control of individuals force them to make choices as economic actors that disadvantage them and neither the law nor, apparently, the government are able or willing to do anything about it.

At the heart of this basic failing is a fundamental fallacy of liberal thought: that freedom is merely the absence of direct coercion. No one held a gun to Molly’s head when she signed her new contract. No one told her that her choice was between signing or going hungry. But in austerity Britain that may have been her reality. Patrick Atiyah, formerly Professor of English Law at Oxford, argued that duress does not deprive the victim of choice “merely presents them with a choice between two evils”. Yet while companies can be protected from having to take that choice, the anatomy of the law means that their workers are not.

It may fluster a few wigs but it would not bring down the common law to acknowledge that taking advantage of another’s economic circumstances can be unjust, just as it would not bring down Starbucks to pay their employees for a half hour lunch break. But they won’t. 

As a society we need to get over the liberal fallacy that freedom is simply the absence of direct coercion. The fear of destitution coerces just as surely, and in a manner far more insidious, as the grasp of the Leviathan. 

About the author

Former Director of Representation at the University of St Andrews, now at the University of Birmingham Law School. Blogs at notesfromasmallplanet

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