Unifinished Business? The Failure of Deregulation in Employment Law

Abstract

It is said that the deregulation of individual employment law is the 'unfinished business' of Conservative labour market reforms.1 The Deputy Prime Minister, Michael Heseltine, has suggested that rights to claim unfair dismissal, race discrimination, and the non-payment of wages might be removed from workers in firms with less than twenty employees.2 These sweeping proposals for the curtailment of employment rights conflict with the orthodox academic assessment that the period since 1979 has already seen substantial deregulation in the field of individual employment law.3 The standard view is that 'de-regulation of the individual employment relationship, in the sense of reducing the impact of employment protection legislation, was a prominent objective of post-1979 governments right from the beginning.'4 The policy of deregulation is taken to have led to what Wedderbur has termed 'a creeping erosion of the floor of rights on employment protection.'5 This article examines the failure of deregulation in individual employment law. The first section discusses Conservative departures from a neo-liberal or New Right agenda in the years since 1979. These deviations can be seen, for example, in relation to state welfare provision and in the reforms of collective labour law and are usually attributed to a mixture of 'political' and 'ideological' circumstances. The second section provides a detailed summary of the changes to individual employment law since 1979. It shows that the period has seen the re-orientation of employment rights rather than their deregulation. This points to a paradox: given the commitment of Conservative governments to market outcomes, why has there not been substantial retrenchment of individual employment law? The third section