Square peg versus a round hole? The Necessity of a Bill of Rights for Workers

Philippa Collins

doi:10.1177/2031952520921879

Abstract

The exercise of human rights is put at risk by the creation, conduct, and termination of employment relationships. For this reason, we often find that fundamental rights arguments are invoked in disputes between employers and workers and the mechanisms of labour and employment law are pressed to vindicate those rights through a process of ‘constitutionalisation’. Notably, the European Convention on Human Rights, through the doctrine of positive obligations, places important demands upon national legal systems, their legislators and their judges, to protect the rights of individuals against other private parties. Taking the law of dismissal in England & Wales as an illustrative example, this article argues that the current approach to safeguarding workers’ rights and complying with the Convention’s positive obligations is inadequate. Making adjustments to the existing structure of employment rights will always be insufficiently radical as those structures are ill-suited to performing this function, their limitations are systemic and furthermore the judiciary is unwilling to disrupt the established analytical approach. Instead, I propose and detail an alternative solution: introducing a Bill of Rights that would render the rights of the European Convention enforceable between worker and employer.

Highlights

The exercise of human rights is put at risk by the creation, conduct, and termination of employment relationships
In recognition of the threat posed by employers to the exercise of human rights by individuals in work, the labour relations context has been a key area of activity in the ‘constitutionalisation’ of the private sphere across many jurisdictions
Across European jurisdictions, a number of general approaches can be identified towards this phenomenon the fundamental rights at stake may come from a variety of sources, national, regional or international

Summary

The current approach

There are two ways in which an employer could infringe upon one’s fundamental rights. Mr Redfearn sought to challenge his employer’s decision to dismiss him as a result of his activities as a member of the right-wing British National Party, and Mr Williams was subject to an invasive electronic investigation by his employer, in breach of his Article 8 right to privacy.21 These claimants were unable to turn to a specific cause of action. It has been suggested that the open-ended range of implied terms could be developed to provide protection for the Convention rights of workers, disclosing a common law route to the fulfilment of the positive obligations that those rights entail These alternatives are examples of the currently dominant method of providing a resolution for claimants who have had their human rights infringed upon by their employer. Minor changes to the structure of protection and the approach of the courts are insufficient to achieve full compliance: it is the argument of this article that a legislative solution is required, designed in light of the requirements of the Convention and dedicated to the effective enforcement of the human rights of workers

The ECHR’s positive obligations in the employment sphere

The tensions between dismissal law and the Convention’s expectations

A legislative solution

Concluding remarks