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• Theoretical issues of equal treatment in relation to the legal classification of labour law

  57-79

  István Herdon

  Dóra Takács

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  187

  There are many national and international academic debates on the classification of labour law. On the one hand, labour law can be categorised as private law when we consider the establishment of employment relationships. The legal basis for an employment relationship is exclusively the employment contract, thus labour law belongs to classical private law. On the other hand, the content of the employment relationship can be determined not only by the employment contract, but also by a number of other rules. These norms typically have public law content and, as so-called public law elements of labour law, seek to limit the contractual freedom of the parties. The existence of public law elements is typically justified by the legislator on the grounds that there is subordination between the parties in the employment relationship, so that the contractual balance of rights, which is characteristic of private law, is shifted in favour of the employer. The presence of elements of public law, and in particular the requirement of equal treatment, is intended to redress this imbalance in employment law by limiting the contractual freedom between the parties. In the present article, we examine in particular whether the presence of public law elements gives labour law a specificity of its own. In addition, focusing on the principle of equal treatment, we examine how the prohibition of discrimination in labour law and classical private law can be interpreted and whether this general behavioural requirement is capable of redressing the balance that has been shifted between the parties. Finally, we ask the rhetorical question: if the requirement of equal treatment is capable of redressing the balance, why is there a need for additional public law elements in labour law?