Fundamental rights: exclusion by agreement?

Abstract

Unlike 'custom-built' statutory employment protection rights, the Human Rights Act 1998 is silent as to the relationship between Convention rights and contract. That relationship will, therefore, be a matter for courts and employment tribunals to determine. This article examines the principles which should inform their deliberations in this area, which, it is argued, should not be shackled by the limitations of the jurisprudence of the European Court of Human Rights and European Commission of Human Rights. The article begins by examining whether it should be possible to exclude the application of Convention rights by agreement. Here it concludes that even on the basis of the Convention jurisprudence, the contexts in which waivers should be deemed effective in the employment sphere should be very limited; rather, any restriction on the exercise of a Convention right, regardless of its source, should be required to satisfy the requisite criteria for justifying such a restriction. It also argues for greater protection against compulsory waiver of Convention rights for job applicants, and for those whose contractual terms and conditions interfere in practice with the exercise of such rights, than the Convention jurisprudence currently affords. It then addresses the particular difficulties surrounding the right to respect for private life, and urges that the scope of this right should not be interpreted by reference to contractual terms which seek to limit a worker's expected zone of privacy. The penultimate section explains the relevance of contract to the process of justifying restrictions on the exercise of Convention rights and outlines the substantive considerations to which regard must additionally be had if restrictions are being contemplated. The article concludes with some further issues which need to be addressed if fundamental rights are to be adequately secured in the workplace.