We’re Miles Apart: Disproportionate Deductions from Wages, Industrial Action and Human Rights

Abstract

This article sets out a human rights-based critique of one aspect of the common law wage/work bargain: the rule that entitles employers to deduct an entire week’s pay from those taking action short of strike, and who thereby perform most, but not all, of their contractual duties. It makes the case that that rule, established in Miles v Wakefield MDC and Wiluszynski v Tower Hamlets over 35 years ago, constitutes a disproportionate interference with an employee’s right to strike and to take industrial action, under Article 11 of the ECHR. The article shows how such cases might be brought, depending on whether an employee is in the public or private sector and iterates the argument for implying a duty of ‘rights-obedience’ into the contract—either as a free-standing duty or as part of an expansion of the duty of mutual trust and confidence—as a corrective.