Labor constitutionalism: Effective judicial protection as a constitutional principle in united kingdom labor law

• Alan Bogg ^[1]
  1. [1] University of Bristol

     University of Bristol

     Reino Unido

     
• Localización: Comparative labor law and policy journal, ISSN 1095-6654, Vol. 43, Nº. 1, 2023, págs. 45-71
• Idioma: inglés
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• Resumen

  • The position of courts in the architecture of enforcement in United Kingdom labor law presents something of a paradox. On the one hand, the courts are almost completely invisible as enforcement actors in the United Kingdom Labour Market Enforcement Strategy developed by the Director of Labour Market Enforcement (DLME).1 On the other hand, the landmark judgment in R (UNISON) v Lord Chancellor affirmed the common law constitutional right of access to the courts.2 This fundamental common law right has significant affinities with the general principle of effectiveness in European Union law,3 and Article 47 of the European Union Charter of Fundamental Rights which protects the right to an effective remedy before a tribunal.

    The first Strategy document of the DLME for 2018-19 is a tour de force. It provided an evidence-based assessment of the scale and typologies of noncompliance in relation to different labor standards, and the balance between inadvertent and intentional violations. It also set out a deeply theorized account of the institutional landscape of labor market enforcement, drawing a distinction between "compliance" and "deterrence" approaches. "Compliance" approaches focus on supporting well-motivated employers to comply with their legal duties. This approach supported recommendations on improving transparency (such as information on pay-slips and the simplification of regulatory requirements). "Deterrence" approaches focus on the deterrent effects of inspection and penalties. This supported recommendations on linking financial penalties to company turnover, and reputational penalties through naming and shaming offenders. The Strategy also set out proposals for joint responsibility for lead companies in supply chains, the extension of licensing requirements to certain problematic sectors, and promoting coordination and information-sharing between different enforcement agencies.

    Yet courts are scarcely mentioned as relevant actors in the overall institutional landscape. Should we conclude that courts are peripheral to enforcement? In some respects, their marginal role in the public strategy should not surprise us. The statutory framework for the DLME is set out in the Immigration Act 2016. Section 2 directs the DLME in formulating the strategy to set out how "labor market enforcement functions" should be exercised, which are further defined in section 3 as encompassing the various enforcement activities of the Gangmasters and Labour Abuse Authority, HMRC (the Inland Revenue enforcing the national minimum wage), and the Employment Agency Standards Inspectorate. The DLME cannot exercise strategic oversight of courts, not least given the constitutional importance of the independence of the judiciary. In political terms, the labor market enforcement strategy is a creature of the Ministry of Business, Energy and Industrial Strategy, not the Ministry of Justice. Yet as we shall see there are various recommendations for legislative change in the strategy which could be addressed by courts. Moreover, this could occur through incremental judicial development within formal doctrinal constraints. In this article, we consider four such examples: applying accessory liability doctrines in supply chains; developing stronger deterrent remedies using aggravated and exemplary/punitive damages; developing alternative remedies where the existing statutory remedies are ineffective; and restraining the illegality doctrine.