Square peg versus a round hole? The necessity of a Bill of Rights for workers

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. Notably, the European Convention on Human Rights, through the doctrine of positive obligations, places important demands upon national legal system, 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 paper argues that the current approach to safeguarding workers’ rights and complying with the ECHR’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 are 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.