Waiver of statutory employment rights in the United Kingdom

The common law endorses the principle of freedom of contract, but, with few exceptions, Parliament has explicitly prevented straightforward waivers of statutory employment rights. Nevertheless, for the sake of promoting settlements of claims by employees, it is surprisingly easy for individual employees to enter into agreements to compromise claims for breach of those rights without appropriate safeguards such as independent advice and freedom from pressure. Moreover, employers’ lawyers have demonstrated considerable ingenuity in finding ways to avoid the application of employment rights either by manipulations of employment status or by seeking contractual agreements on the facts of the case that will effectively prevent a claim from being brought. Although the courts are alert to these devices and subterfuges, vigilance is always required. Trade unions in the United Kingdom have not sought the power to negotiate collective agreements that vary or derogate from rights. The government created the possibility that employers could enter into agreements with non-union representatives of the workforce to derogate from working time rights, but there is no evidence that employers have ever used this device. To the extent that statutory employment rights express or embody an aspect of protected human rights or fundamental rights, indirect waivers will be tested for the proportionality of their interference with the right and rejected altogether if they deny the core of the right.