Putting human rights to work : the protection of the human rights of workers through the law of dismissal

The disciplinary powers of employers pose a significant threat to the human rights of their workers. To guard against this risk, workers should receive protection against infringements on their human rights by their employer. It will be suggested that safeguarding the fundamental rights of workers has always been one aspect of labour law’s purpose. Consequently, employers are already under an imperfect duty to respect the human rights of their workers, generated by a patchwork of existing legal obligations. Nevertheless, the protections afforded by UK employment law suffer from deficiencies when assessed against human rights standards. This thesis focuses upon the principles of the European Convention on Human Rights, as incorporated into UK law by the Human Rights Act 1998. It discusses the weaknesses and lacunae in the law of unfair dismissal and the common law of wrongful dismissal. The narrow personal scope of employment rights excludes a variety of individuals who benefit from the universality and inclusivity of human rights protection. The statutory law of unfair dismissal has several deficiencies as a mechanism of human rights protection. The three areas that will be examined particularly the manner in which the justification process is applied and the remedies available to successful claimants. There are a number of ways that the common law of wrongful dismissal could provide an alternative route to protection: sympathetic interpretation of the contractual terms, a favourable evolution of the implied obligation of mutual trust and confidence, or a new implied term requiring that employers respect the human rights of their workforce. However, contractual protection could be ousted by the insertion of inconsistent or exclusionary terms. The adequacy of this alternative course is therefore questionable. In response to the many deficiencies exposed in the human rights protection currently granted by UK employment law, a legislative solution will be suggested and outlined. It would provide effective protection to the human rights of workers, safeguarding the workers against the risks that their employers’ powers pose to their most fundamental rights.