The principle of ‘equitable assessment’ in Hungarian labour law − How to make it work?

Kun, Attila (2018) The principle of ‘equitable assessment’ in Hungarian labour law − How to make it work? Hungarian Journal of Legal Studies, 59 (1). pp. 40-57. ISSN 2498-5473

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Abstract

Labour standards are more and more framed as open norms at a higher level of abstraction. A considerable share of these open norms set standards of conduct for employers in order to inspire socially responsible corporate behaviour. Nonetheless, concerns are often raised about the uncertain, un-measurable, possibly insufficient implementation of these open standards. The present paper examines one illustrative Hungarian regulatory case-study in order to be able to reflect on the chance of implementation of open norms in a more general context. This regulatory case study is the principle of ‘equitable assessment’ from the new Hungarian Labour Code. According to this ‘employers shall take into account the interests of workers under the principle of equitable assessment; where the mode of performance is defined by unilateral act, it shall be done so as not to cause unreasonable disadvantage to the worker affected’ (Section 6, Subs. 3 of Act 1 of 2012 on the Labour Code). The principle of ‘equitable assessment’ institutionalizes one form of the proportionality-test, as a limitation on employers, into the architecture of Hungarian labour law as a general standard. One of the main assumptions of the paper is that ‘essence’ i.e. the goal, aim, relevance, ‘marketing’, uptake, infrastructure etc, of a given open norm is the truly important factor for its total effect and success, not solely its judicial practice. In summary, the principle of ‘equitable assessment’ does not fulfil its intended most important functions and, for the time being, it cannot unfold its inherent multifaceted potential. In this context, the study examines the reasons why this standard is struggling with a form of functional deficiency and aims to demonstrate how this particularly important provision could be more effectively operationalized, dynamized, and ‘breathed into life’.

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