Towards a Prohibition of the Derogation of Employment Rights

Abstract

In fifty-sixth series of Hamlyn Lectures (2004), Sir Bob Hepple applied his mind to particular structural problems facing UK employment law in 21st century. One of challenges which he identified was the absence of general principle that one may not derogate from certain core [employment] - i.e. existence of what writer has called deficit. The historical tendency of common law judges to construe employment rights as being prone to defeat by consensual disapplication has resulted in common law and statutory rights operating as ceiling, rather than bedrock or floor, of protection. Sir Bob perceives lack of non-derogation principle as amounting to one of obstacles which precludes evolution of meaningful bedrock of fundamental employment principles and rights. Fundamental employment principles and rights have virtue of being able to act as base upon which legal systems and nation states could erect comparative institutional advantage of rights-based employment regulations. Rights-based regulations would enhance competitive, trading and investment positions of nation state and assist in attracting inward investment by encouraging growth of motivated and co-operative workforce which is highly skilled. Core, inderogable employment law principles and rights are viewed as a good thing since, by definition, they would be incapable of exclusion by agreement or otherwise. If inderogability were to emerge as an overarching principle applying to employment relationship and contract of employment as matter of course, common law and statutory employment rights and principles could evolve to properly function as floor rather than ceiling of protection. This paper represents first of three papers on subject of inderogability deficit and whether principle of inderogability is something which could emerge within current structures of UK employment law. It explores following major issues: - 1. An examination of sources of employment rights and sources of derogation and production of methodological framework with reference to such sources for purposes of writer's research project; 2. The various rationales in favour of evolution of principle of inderogability; and 3. The factors militating against emergence of an inderogability principle. This paper does not propose to chart extent of inderogability deficit with reference to exact proportion of UK employment rights which can be disapplied or qualified by contractual or other techniques. However, number of examples of derogable employment rights will be considered to underline clearly point throughout this paper. Further, overall research project aims to achieve following objectives: - 1. Attempt to construct framework within which meaningful principle of inderogability might emerge; and 2. Ascertain whether it is at all feasible that such principle can ever emerge in context of contract of employment as constructed in terms of UK employment law.