Towards a Prohibition of the Derogation of Employment Rights

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