By now it has become quite rare, in our highly regulated world, to come across the old-fashioned phrase 'freedom of contract'. We live in a post-freedom world, where the most important thing is to equalise everything. In the fight against inequality, nobody has time to worry about freedom. We have truly have a come a long way since the ancient golden era of freedom of contract. But occasionally, when you're innocently and quietly reading a Supreme Court decision on why it's wrong to charge people fees to file complaints against their employers (surely anybody should be able to complain about other people for free?) you are suddenly confronted with the idea that notions of freedom of contract might actually be relevant to this situation.
Thus spoke Lord Reed in UNISON v Lord Chancellor, a case which decided that really, people shouldn't have to pay court fees just to have a chance to complain about their exploitative and discriminatory employer. The fees should be met by taxpayers. Taxpayers are happy to pay more taxes for this purpose, because one day, it could be them wanting to complain about their employer, and then they'll be so happy that they are able to do so for free. Being able to sue your employer for free is a central attribute of the human right of 'access to justice'. We are all entitled to justice, and we shouldn't have to pay for it. That's what taxes are for: to pay for stuff that makes life better for all of us, such as employment rights.
In explaining why all this is important, Lord Reed helpfully explains that freedom of contract doesn't apply in this situation:
Statutory rights, otherwise known as plastic rights to distinguish them from natural rights, are defined in law as rights which nobody would freely agree to confer upon you, were they not forced by law to do so on pain of several nasty penalties. Key among the new raft of plastic rights is the right to sue your employer when he fires you. Because exploitation and discrimination and other undesirable practices, and the social problems which can result.
Unfortunately, since many employers ignore plastic rights (never having agreed to them in the first place) the only thing for the aggrieved employee to do is go to law for enforcement. The trouble is, law enforcement is expensive, so the only way these rights will ever be enforced is by making it free to file unfair dismissal claims. If you get fired, you can simply bring a lawsuit in which the tribunal will decide whether it was fair or unfair for the employer to choose no longer to be in a contract with you.
The notion that you can choose freely to enter or exit a contract with someone else (on giving the agreed notice) is a key tenet of contract law, founded on three main principles:
Long ago these three elements were bound together in the prevailing understanding of contract law:
But in the modern enlightened age, we see courts valiantly explaining that we must override freedom of contract because of the unequal economic power of employer and employee or 'relative bargaining power':
If you make a contract with somebody who is not equal with you (because they have more money than you) then obviously you shouldn't be held to the terms of your contract. Because exploitation and discrimination and other undesirable practices. Employers on the other hand should be bound by the contract, because they are not vulnerable. Only vulnerable people are allowed to exit contracts at will - all others have to pay up.
Unfortunately, it seems that many employers have not caught up with these developments. They seem to feel that if they start a business, they can choose whom to hire and fire. When they fire people, they tend not to want to pay compensation for the unfairness of firing them. Thus nearly half of employees have a very hard time enforcing their unfair dismissal rights against employers even when they win their case:
Now, the case report doesn't reveal why all those employers are refusing to pay out on those awards. Maybe they have no money. Maybe they're on the run. Maybe they're just evil bastards who always try to discover the wrong thing to do in a situation, and then double down on it. All we have been informed is that all these employers must pay up because of the exploitation and discrimination and other undesirable practices that they were found to have committed against their employees, but many of them are simply not paying up.
Perhaps a whole load of these employers are not yet convinced that they did anything wrong, and that's why they don't pay up? This is always going to be a problem when you create plastic rights. You are guaranteed to suffer severe enforcement problems that make a mockery of the so-called framework of 'rights'.
Scholar, Writer, Friend