Monday, April 25, 2022
Forthcoming in the Comparative Labor Law & Policy Journal - The position of courts in the architecture of enforcement in UK labour 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) . On the other hand, the landmark judgment in R (UNISON) v Lord Chancellor affirmed the common law constitutional right of access to the courts. This fundamental common law right has significant affinities with the general principle of effectiveness in EU law, and Article 47 of the EU 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 non-compliance in relation to different labour standards, and the balance between inadvertent and intentional violations. It also set out a deeply theorised account of the institutional landscape of labour 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 payslips 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?