Statutory Employment Rights Research Articles

Putting Human Rights to Work: Labour Law, the ECHR, and the Employment Relation

It is no exaggeration to say that labour law as a discipline in recent years has experienced something of a crisis of confidence.1 Once standing tall and proud, seemingly impervious to potshots and blows to its status originating from outside its hallowed halls, in the past 40 years or so, it has undergone a series of sustained attacks from a number of directions. In Putting Human Rights to Work, Philippa Collins asks whether the adoption of a ‘rights turn’, and in particular, the recasting of human rights law and fundamental rights as labour rights and/or the incorporation of human/fundamental rights norms into existing labour laws, could be the solution to labour law’s existing woes (pp 35–37). Citing Tarunabh Khaitan’s work on discrimination law, Collins refers to work and the workplace as ‘the enabling opportunity’ (p 25), ie, the most obvious arena in life where individuals can establish social, financial and psychological security, extend their opportunity sets and realise human flourishing.2 Collins goes on to make a persuasive case in favour of a draft Bill of Human Rights for Workers (Ch 9), having charted the poverty of imagination displayed by the judiciary regarding the infusion of human rights concepts and norms into the content and scope of common law employment rights and the process of interpretation of statutory employment rights. The point is made that the opportunity to marshal the worker-progressive potential of human rights as a means of expanding the protective capacity and range of employment rights, has been largely wasted.

Informal Caregivers along the Work–Eldercare Axis: A Comparative Analysis of Australia, England, and Israel

Abstract Contemporary Western societies face an increasing demand for informal care. The primary goals of the present article are to understand the degree to which employment rights support the needs of working carers’ of elder age relatives and to underscore the need to promote social policies to better secure both working carers and their older relatives. Drawing on findings showing that high-intensity caregiving is associated with a reduction in the labour pool for paid work and negatively affects employment status and career, this study examines how employment legislation support working caregivers from an international perspective. The study utilizes an intrinsic and case study research design to compare the employment rights and entitlements in Australia, England, and Israel. The findings indicate that, first, all three countries surveyed provide basic protection through statutory employment rights which are categorized under three fundamental occupational entitlements: Paid or Unpaid Leave, Sick Days and Equal Rights. Secondly, while Australia and England maintain a legal right to request flexible work to care for elder relatives, the analysis foregrounds the absence of flexible employment legislation in Israel. Thought that the aim of balancing limited public resources with family resources requires a broad understanding of concrete legislation, such comparison can inform policy targeted to reconcile distress along the work–eldercare axis.

Privatizing Employment Law: The Expansion of Mandatory Arbitration in the Workplace

This article examines the institutional, political, and legal development of employment arbitration as it shifted from a Progressive Era form of justice enhancement to one co-opted by business-friendly conservatives arguably more concerned with protecting employers from litigation. While arbitration has a long history in the United States, the expanding use of mandatory, employer-promulgated arbitration clauses has more than doubled since the 2000s. In examining the nature of the shift, this article argues that it occurred through a gradual process of conversion in three institutional realms (1) legislative conversion, (2) private-sector conversion of public regulation, and (3) judicial conversion. Facilitated by a growing divide among Democrats on the value of arbitration, conservatives began to promote it in the 1970s and 1980s as backlash to the expansion of statutory employment rights. I argue that they did so by converting the institutional infrastructures of labor and commercial arbitration, a process continued by the private sector and Supreme Court. As such, this article argues that conversion is the product of multiple actors targeting multiple institutions, over decades, and with consequences for both the literature on institutional change and conceptions of equality under the law.

British employment tribunals: from the side-lines to centre stage

Employment tribunals, originally called industrial tribunals, were established 50 years ago in Great Britain and this article traces their gradual change. Originally constituted as administrative tribunals in 1964, they morphed to party versus party forums from the 1970s, but this change did not stop there. Over the succeeding years, employment tribunals moved from a marginal role to a central role in British employment relations, as their caseload has risen, their remit has widened, and as legal regulation has replaced collective regulation. Moreover in so doing, employment tribunals have become less accessible to workers, less speedy and more expensive. They have also become more formal, with legal norms and practices and adjudication by lawyers alone replacing industrial relations norms and adjudication by a mix of lawyers and lay people. As a result, employment tribunals have become juridified. The article concludes by critiquing the basis of employment tribunals which is the self-help/complainant after the event approach, as opposed to state enforcement of statutory employment rights.

The Coalition government's reforms to employment tribunals and statutory employment rights—echoes of the past

AbstractThe current Coalition government's reforms of Employment Tribunals (ETs) and statutory rights echo the articulated rationale and argument, the underpinning deregulation ideology and the content of reforms initiated by Conservative governments of the 1980s and 1990s. The changes, while generally adverse for workers, are not necessarily positive for employers and risk adding to, rather than alleviating, the regulatory ‘burden’. A declared emphasis on alternative dispute resolution and workplace dispute settlement distinguishes the current reform agenda, but the potential this offers is unlikely to be realised given the short‐term policy focus on cost reduction, an emphasis on suppressing and deterring legal actions rather than on improving workplaces and the absence of such facilitating features as workplace representation and institutions, a continuing legacy of the 1979–1997 period.

The Regulatory Exclusion of Agricultural Workers in Alberta

The opportunity structure facing waged agricultural workers seeking basic statutory employment rights in the Canadian province of Alberta is hostile, reflecting the intertwined political and economic interests of farmers, the provincial government, and agribusiness. This article outlines the contours of the political opportunities and constraints facing labour groups and agricultural workers seeking legislative change. Analysis suggests there is little opportunity at present to alter this legislative exclusion.

Towards a Prohibition of the Derogation of Employment Rights

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.

What Space for Unions on the Floor of Rights? Trade Unions and the Enforcement of Statutory Individual Employment Rights

The recent development of statutory individual employment rights alters the balance between legal regulation and collective bargaining. Union influence in the workplace has declined and workers are more reliant on individualised procedures culminating in claims to employment tribunals. There is potential, though, for unions to play a role in enforcing statutory employment rights, to demonstrate the efficacy of representation to potential members and to augment collective bargaining agenda. Union engagement with the law is explored in this article through detailed case studies conducted in two unions. Findings highlight sustained commitment to strategic legal challenges, but also some substantial obstacles to the broader use of the law to mobilise workers and potential members.

Individual statutory employment rights since 1997: constrained expansion

This article explores developments in statutory individual employment rights since the election of the Labour Government in 1997. It also discusses the mechanisms for the adjudication and enforcement of individual employment rights. There have been changes in the institutions and dispute settlement processes and procedures, although I argue that an opportunity for a radical re‐think was missed. There are continuities with Conservative thinking, as well as departures from it. Part of my argument is that policy is being based on a problematic representation of “the problem” of increased exercise of individual rights. There is also a neglect of the inter‐relationship between individual employment rights and collective representation at the workplace. The weakening of individual employment rights under previous Conservative Governments was achieved in part by weakening collective organization. Although the Labour Government has addressed the former by strengthening and expanding individual statutory rights, I argue that achievements are constrained by its seeming ambivalence towards the latter.

Part 9: statutory employment rights

In the last step by step article it was noted that within the contract of employment are many terms which are imposed upon the employer by Act of Parliament and are therefore known as the statutory rights of the employee. They are set out in a variety of legislation and many have been consolidated in the Employment Rights Act 1996.

Making It In and Making Out: Women in Professional Occupations in Britain and France

The relationship between gender, work and organization in professional occupations can be shown to vary according to different work environments and national contexts. The career patterns of women in chartered accountancy and law in Britain and France are explored in different types of organization in order to determine whether the societal structuring of these occupations is gendered and whether women fare better in small professional practices or large bureaucratic organizations. The findings are derived from a comparative study which combined macro‐level data with in‐depth qualitative analysis of work and family life histories of a small number of women professionals. While women in the two countries and two occupations were found to share many of the same problems in establishing and pursuing a career, the evidence suggests that women in France may have a marginal advantage over their British counterparts, not so much because they have access to more extensive statutory employment rights but rather because they are more often employed in small practices where they are able to use their independence and their control over working conditions and work‐time arrangements to structure their careers according to their own requirements and interests.

The New Unfair Dismissal Jurisdiction in South Australia

The transition in the South Australian jurisdiction over unfair dismissals has generated issues that challenge the future and directions of employment protection in Australia. The new provision, with its key remedial power of compensation in liett of reinstatement or re-employment, has in its practical operation approached far closer to the British model of statutory employment rights than any of its counterparts in the other states, and has further proved sufficiently flexible to generate entitlements to redundancy payments in a novel way. Many of the legal points raised in the decided cases to date reflect important aspects of definition, interaction with otherjurisdictions and employ ment policy generally; these include the definition of dismissal, the effect of alternative remedies on an unfair dismissal claim, the taxation of compensation awards and the significance of this type of legislation as a source of procedural (if not always substantive) fairness.