Common law and statute in the law of employment

Speaker: Professor Alan Bogg (University of Oxford)
Chair: Lord Justice Elias
Admission: Free
Accreditation: This event is accredited with 1 CPD hour with the SRA and BSB

Current Legal Problems 2014-15

How should judges develop the common law where Parliament has ‘occupied the field’ through statutory regulation? This is an important enquiry, particularly given the modern prominence of legislation as a form of law-making in the sphere of labour law. In Johnson v Unisys, Lord Hoffmann controversially invoked constitutional principle to halt the development of the common law of wrongful dismissal in the face of a statutory right not to be unfairly dismissed.

In many respects, Lord Hoffmann’s reasoning stands apart from an influential thesis that the common law should be developed naturally in the law of obligations, with the onus on Parliament to intervene and reverse common law developments where it is thought appropriate to do so. In this lecture, Professor Bogg will argue against that view.

Using examples from labour law, it is suggested that Lord Hoffmann’s approach in Johnson v Unisysembodies a set of constitutional instincts that generate an appropriate set of attitudes towards common law development in areas where Parliament has legislated. These instincts are sensitive to the distinctive nature of labour law, which sets it apart from the general law of obligations.

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About the speaker

Alan received his undergraduate and graduate education in Oxford, being awarded his BA in Law (first class) in 1997. Thereafter, he was awarded the degrees of BCL (first class) and DPhil. Following a period as a lecturer at the University of Birmingham, Alan returned to Oxford in 2003 to take up his fellowship at Hertford College. Alan’s research focuses predominantly on theoretical issues in domestic, European and International labour law. His book The Democratic Aspects of Trade Union Recognition was published in 2009 by Hart Publishing. It was awarded the SLS Peter Birks’ Prize for Outstanding Legal Scholarship in 2010 and has been reviewed in the Cambridge Law Journal, Law Quarterly Review, Modern Law Review, Industrial Law Journal, British Journal of Industrial Relations, International Journal of Law in Context, Industrial Relations Journal (UK), Journal of Industrial Relations (Australia), Osgoode Hall Law Journal, and Canadian Journal of Employment and Labour Law. Additionally, his work in labour law has been published in a wide variety of international journals.

He is currently coordinating a Leverhulme International Research Network with Professor Tonia Novitz at the University of Bristol following the successful award of a large scale grant. Details of the network’s activities can be found here: www.voicesatwork.org.uk.

The network includes academics from Stanford, Osgoode Hall, and Monash Universities

Professor Bogg’s current research projects include: the intersection between migrant status and labour rights; European Social Dialogue and theories of deliberative democracy; and the constitutionalisation of freedom of association in comparative perspective. His work has been cited by Advocate Generals in the Court of Justice of the European Union in respect of working time regulation. Most recently, his work was cited with approval by the United Kingdom Supreme Court on the issue of sham contracts of employment in Autoclenz v Belcher. He is a member of the Executive Committee of the Institute of Employment Rights.

About Current Legal Problems

The Current Legal Problems annual lecture series was established over sixty years ago. The lectures are public, delivered on a weekly basis and chaired by members of the judiciary.

The Current Legal Problems (CLP) annual volume is published on behalf of UCL Laws by Oxford University Press, and features scholarly articles that offer a critical analysis of important current legal issues. It covers all areas of legal scholarship and features a wide range of methodological approaches to law. With its emphasis on contemporary developments, CLP is a major point of reference for legal scholarship.

Find out more about CLP on the Oxford University Press website