Human Rights and the Law of Unfair Dismissal

Abstract

Abstract Both in terms of the values that underpin the jurisdiction and the structure of the enquiry, the law of unfair dismissal seems initially to be well suited to the enforcement of the qualified Convention rights of individuals at work. The Court of Appeal has even attempted to draw the standard of fairness into closer alignment with the Convention’s proportionality standard. Nevertheless, this chapter will observe significant disparities between the standard of fairness applied by the tribunals, which is deferential and leaves employers with a wide degree of managerial prerogative, and the way that the European Court of Human Rights examines whether an infringement is justified. Tribunals often decide cases without any reference to human rights that may be engaged by the facts and, if rights are considered, the examination of the proportionality of the interference is far from searching. The chapter concludes with consideration of the remedies available following an unfair dismissal, noting several scenarios in which the successful claimant may not receive an effective remedy.