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  • Print publication year: 2011
  • Online publication date: November 2011

16 - Employment law


Employment law deals with relationships between individuals in a place where the majority of adults spend a significant proportion of their time, namely, the workplace. Although this is generally an arena of private law, there is ample scope for human rights arguments to become relevant in regulating the workplace, both during employment and when the relationship begins to break down.

The application of the HRA in this context seems particularly apt because, unlike in many other areas of private law, there is an unequal balance of power between employer and employee, which can be seen as similar to the relationship between the individual and the state. Although the employment relationship is essentially based on contract, this is not a bargain between equals, meaning that an employer is in a unique position to harm the social and welfare rights of its employees. The ability of employers to rely on the private law of contract to regulate the employment relationship is already considerably circumscribed by statute, through a variety of laws that are designed to protect the individual from the employer's power and the inadequacies of collective bargaining. It is simply one step further to regulate the terms of both the contractual bargain and the protective statutes themselves through the use of human rights principles.

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