1. ‘Standards’ in this paper are perceived as open-textured legal commands, rather than Dworkin's ‘principles’; on which, see Hart, H and Sacks, A The Legal Process (Based on Tentative Edition of 1958, New York: Foundation Press, 1994) pp 139–143.Google Scholar

2. For example, theoretical enquiries have investigated the means by which the mandatory or permissive status of an employment right (which is crafted as a rule) might inform our understanding of the level of significance of that right in policy and normative terms; on which, see Hepple, B Rights at Work: Global, European and British Perspectives (London: Sweet & Maxwell, 2005) pp 53–63 Google Scholar; Deakin, S and Wilkinson, F ‘Labour law and economic theory: a reappraisal’ in Collins, H, Davies, P and Rideout, R (eds) Legal Regulation of the Employment Relation (London: Kluwer, 2000) p 33 Google Scholar; Collins, H ‘Legal responses to the standard form contract of employment’ (2007) 36 Industrial Law Journal 2 at 7–10CrossRefGoogle Scholar; Kahn-Freund, O ‘the shifting frontiers of the law: law and custom in labour relations’ (1969) 22 Current Legal Problems 1 at 2CrossRefGoogle Scholar; Rudden, B ‘Ius Cogens, Ius Dispositivum’ (1980) 11 Cambrian Law Review 87 at 89–90Google Scholar; Freedland, M ‘Ius Cogens, Ius Dispositivum, and the law of personal work contracts’ in Birks, P and Pretto, A (eds) Themes in Comparative Law (Oxford: Oxford University Press, 2002) p 165.Google Scholar

3. Davies, A ‘Judicial self-restraint in labour law’ (2009) 38 Industrial Law Journal 278.CrossRefGoogle Scholar

4. On the basis that there is a rich body of academic literature dedicated to the task, it is not proposed to explore the circumstances in which it may be more appropriate to draw an employment right in terms of a standard rather than a rule. For a comprehensive treatment of this issue, see the economic and jurisprudential insights offered in Kaplow, L ‘Rules versus standards: an economic analysis’ (1992-1993) 42 Duke Law Journal 557 CrossRefGoogle Scholar, Schauer, F Profiles Probabilities and Stereotypes (Cambridge MA: Harvard University Press, 2003) pp 199–201 Google Scholar, Ayres, I ‘Preliminary thoughts on optimal tailoring of contractual rules’ (199394) 3 Southern California Interdisciplinary Law Journal 1 at 7Google Scholar, MacCormick, N Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford: Oxford University Press, 2005) p 170 CrossRefGoogle Scholar, Hart, Hla The Concept of Law (Oxford: Oxford University Press, 2nd edn, 1994) p 131 Google Scholar and Kennedy, D ‘Form and substance in private law adjudication’ (1975-1976) 89 Harvard Law Review 1685 at 1687CrossRefGoogle Scholar. The basic idea is that it may be more efficient and less costly for a rule maker to frame the employment right in terms of an open-ended standard and defer the evaluation of liability to an adjudicator in particular cases which emerge in the future. A standard affords a law maker the luxury of avoiding the upfront expenditure of resources by devolving responsibility for dispute resolution to adjudicators to ascertain whether an employer has infringed the standard, or not, as the case may be.

5. Davies, P and Freedland, M Kahn-Freund's Labour and the Law (London: Stevens, 1983) p 15.Google Scholar

6. Hart, above n 4, pp 131–134; Posner, R Economic Analysis of Law (New York: Aspen, 7th edn, 2007) pp 587–590 Google Scholar; Hart and Sacks, above n 1, pp 139–141.

7. Diver has forged a distinction between rules and standards in terms of the degree of transparency and accessibility of the legal command: Diver, Cs ‘the optimal precision of administrative rules’ (1983) 93 Yale Law Journal 65 at 67CrossRefGoogle Scholar; see also Kaplow, above n 4, at 561.

8. Kennedy, above n 4, at 1688.

9. Eisenberg, Ma ‘the divergence of standards of conduct and standards of review in corporate law’ (1993) 62 Fordham Law Review 437 at 437.Google Scholar

10. On the importance of isolating the addressee of the command, see Hart and Sacks, above n 1, pp 118–119.

11. Which will be replicated in very similar terms by ss 21 and 22 of the Equality Act 2010 (EA) when it (and regulations pursuant to s 22 of the EA) comes into force.

12. Eisenberg, above n 9, at 462.

13. Clark v Nomura International plc [2000] IRLR 766 at [40] per Burton J; Horkulak v Cantor Fitzgerald International [2004] EWCA Civ 1287, [2004] IRLR 942 at [51] per Potter LJ; and Commerzbank AG v Keen [2006] EWCA Civ 1536, [2007] IRLR 132 at [59]–[60] per Mummery LJ.

14. See s 1(2)(b)(iii) of the Sex Discrimination Act 1975, s 1(1A)(c) of the Race Relations Act 1976, reg 3(1)(b)(iii) of the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660, reg 3(1)(b)(iii) of the Employment Equality (Sexual Orientation) Regulations 2003, SI 2003/1661 and reg 3(1) of the Employment Equality (Age) Regulations 2006, SI 2006/1031. These provisions will be replicated in very similar terms – and supplemented to extend the proportionality standard to cases of indirect disability, gender reassignment, marriage and civil partnership discrimination – by s 19(2) and (3) of the EA when it comes into force.

15. Another example of a standard of review is the ‘reasonableness’ standard in the Employment Rights Act 1996, s 98(4). However, it is more sophisticated, since it is a provision which is clearly directed towards both employers and adjudicators, thus amounting to a highly complex combination of a standard of conduct and standard of review rolled into one.

16. In the sense that the adjudicators alter the intensity of scrutiny.

17. Although such an endeavour is open to the accusation that it is particularly vague and lacking in specification, the force of such a sentiment should not be taken to be so compelling that its abandonment is justified. Indeed, a number of jurists in recent times have sought to benchmark a whole series of employment rights (to which such standards attach) against the aforementioned fundamental conceptions, on which, see Collins, H Employment Law (Oxford: Oxford University Press, 2003) chs 1–7Google Scholar; Brodie, D ‘Legal coherence and the employment revolution’ (2001) 117 LQR 604 at 620–621Google Scholar; Collins, H ‘Regulating the employment relationship for competitiveness’ (2001) 30 Industrial Law Journal 17 CrossRefGoogle Scholar. With some justification, one might argue that what can be done for employment rights can equally be achieved for the standards which capture the content and scope of application of such rights.

18. Hart and Sacks, above n 1, p 140; Kennedy, above n 4, at 1688.

19. A Herculean task which Robert Alexy has tackled in his magisterial work, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002).

20. See the interesting analysis of the potential rationales for judicial deference to management in Davies, A ‘Judicial self-restraint in labour law’ (2009) 38 Industrial Law Journal 278 at 289–291.CrossRefGoogle Scholar

21. One might oppose such a line of argument on the basis that other factors serve to influence the intensity of the standard of conduct, such as transaction costs and political or judicial compromise. As such, the argument would run that the directness of the connection between the intensity of scrutiny and the significance of an employment right is tenuous at best. However, it is submitted that such an objection can be addressed on two fronts. First, whilst it is recognised that political or judicial compromise are indeed influential factors, transaction costs analyses are more useful when one is required to decide the form which an employment right ought to take, that is to say, whether it is articulated as a rule or a standard. In such a case, it is clear that a cost–benefit analysis is a useful instrument. However, in the case of the level of intensity of scrutiny attached to a standard of conduct, it is perhaps not so useful, since the concern is more about the moral or policy message which is communicated to the employer being duly reflective of the symbolical force attached to the law in that context. Secondly, and more importantly, the argument is not that there is a direct connection between the significance of the employment right and the intensity of scrutiny. Instead, it is contended that the connection is slightly looser in the sense that it represents a broad-brush correlation. Such a contention recognises that other factors do indeed operate to influence the level of intensity of the standard of conduct, whilst preserving the fundamental importance of that correlation intact.

22. See W Devis & Sons Ltd v Atkins [1977] AC 931 at 952 per Viscount Dilhorne.

23. N MacCormick, above n 4, p 163 and see p 177; see also OW Holmes Jr The Common Law (Boston MA, 1881) pp 110–111 and Lord Reid ‘The law and the reasonable man’ (1968) 54 Proceedings of the British Academy 189 at 201.

24. Freer, A ‘the range of reasonable responses test – from guidelines to statute’ (1998) 27 Industrial Law Journal 335 at 344.CrossRefGoogle Scholar

25. From the viewpoint of the employer, not the adjudicator.

26. Post Office v Foley [2000] IRLR 827 at [9] per Mummery LJ.

27. From the viewpoint of the employer, not the adjudicator.

28. Fleming, J The Law of Torts (Sydney: Law Book Co, 9th edn, 1998) p 119 Google Scholar. See also W Seavey ‘Negligence – subjective or objective’ (1927) 41 Harvard Law Review 1 at 27–28.

29. See Collins, H Justice in Dismissal (Oxford: Oxford University Press, 1992) pp 97–98 and 100 CrossRefGoogle Scholar. To that extent, the argument that the range test excludes subjective considerations is rejected, on which, see Freer, above n 24, at 342–343.

30. When s 15 of the EA comes into force, s 3A(1) and (3) of the DDA will be repealed.

31. An objective standard enables an adjudicator to substitute its own judgment for that of the decision maker, thus harnessing a more intensive appraisal of the employer's actings. For a particularly emphatic version of this view, see the judgment of Rix LJ in Socimer International Bank Ltd (In Liquidation) v Standard Bank London Ltd [2008] 1 Lloyd's Rep 558 at [66] where his Lordship stated that on the application of an objective standard, ‘the decision maker becomes the court itself’.

32. [2001] IRLR 384. In Jones, the Court of Appeal held that a tribunal should consider whether the reason advanced by the employer for the treatment of the disabled person fell within the range of what a reasonable employer would have relied on as a material and substantial reason for the less favourable treatment. Thus, an adjudicator is not entitled to enquire whether the employer's reason for the disability-related discrimination was material and substantial and then substitute its own judgment for that of the employer if it disagrees with the judgment of the employer, since this would involve the application of a purely objective standard (ibid, at 388 per Pill LJ). Instead, the tribunal must make a list of the reasons which reasonable employers would consider to be material and substantial reasons for the less favourable treatment. If the reason advanced by the employer for the less favourable treatment in a particular case is not included on the adjudicator's list, the employer will not have satisfied the s 3A(1)(b) and (3) of the DDA defence. In shorthand, this variant of the ‘range of reasonable responses test’ may be referred to as the ‘range of material and substantial reasons’ test.

33. See above 9, at 466.

34. Ibid, at 466.

35. Allen, Wt, Jacobs, Je and Strine, Lb Jr ‘Realigning the standard of review of director due care with Delaware public policy: a critique of van Gorkom and its progeny as a standard of review problem’ (2002) 96 North Western University Law Review 449.Google Scholar

36. Ibid, at 454–455.

37. See above n 9, at 444. The analysis here is reflective of the ‘burdens of judgment’ conception advanced by Rawls in contemporary political theory, on which, see J Rawls Political Liberalism (New York: Columbia University Press, 1993) pp 54–66. The ‘burdens of judgment’ is a leitmotif in terms of which Rawls seeks to explain why reasonable persons may reasonably disagree or reach contrasting positions when faced with a decision-making task. In exercising judgment, the ‘way we assess evidence and weigh moral and political values is shaped by our total experience… [and so] in a modern society with its numerous offices and positions … judgments… diverge, at least to some degree, on many if not most cases of any significant complexity’.

38. Fischhoff, B ‘For those condemned to study the past: heuristics and biases in hindsight’ and ‘Debiasing’ in Kahneman, D, Slovic, P and Tversky, A (eds) Judgment Under Uncertainty: Hueristics and Biases (Cambridge: Cambridge University Press, 1982) pp 341–343 and 427–431.Google Scholar

39. In terms of the reasons itemised in the ERA, s 98(1) and (2).

40. That much is acknowledged by Ackner LJ in British Leyland UK Ltd v Swift [1981] IRLR 91 at 93.

41. Allen, Wt, Jacobs, Je, Strine, Lb Jr ‘Function over form: a reassessment of standards of review in Delaware corporation law’ (2001) 26 Delaware Journal of Corporate Law 859 at 868–869.Google Scholar

42. Collins, above n 29, pp 97–102.

43. UKEAT/0497/06/MAA, [2007] All ER (D) 144 (Feb).

44. Heathrow Express Operating Co Ltd v Jenkins UKEAT/0497/06/MAA, [2007] All ER (D) 144 (Feb) at [40]–[41].

45. Which Elias J noted in Heathrow Express, ibid, at [40]–[41]. See also C Barnard and B Hepple ‘Substantive equality’ (2000) 59 CLJ 562.

46. Davies, above n 3, at 287.

47. DDA, ss 3A(2), 4A(1) and 18B.

48. Which will be replicated in very similar terms by ss 21 and 22 of the EA when it (and regulations pursuant to s 22 of the EA) comes into force.

49. [2004] EWCA Civ 144, [2004] IRLR 395.

50. [2005] EWCA Civ 1220, [2006] IRLR 41 at [44]–[49].

51. Archibald v Fife Council [2004] ICR 954 at [57]. Although the above passage from the speech of Baroness Hale refers to the ‘DDA’, it is clear from a later section of her speech that she was confining the wider proposition in the above excerpt to the ‘duty to make reasonable adjustments’ in ss 3A(2) and 4A(1) of the DDA. See also the judgment of Mummery LJ in Aylott v Stockton-on-Tees Borough Council [2010] EWCA Civ 910 at [72].

52. For example, although policy factors may suggest a more lenient standard of review, nevertheless it may be that the weight of the justifications in terms of the fairness criteria operate as a sufficient counter-balance to support the rejection of such an indulgent standard of review.

53. An alternative argument put forward by MacCormick is that the identity and nature of the fundamental values, interests and purposes which underlie an employment right will influence the judgment of the adjudicator in the task of applying the standard of review to a particular case. That is to say that in determining whether the applicable standard of review has been discharged in a particular case, an adjudicator will engage in the impartial balancing and assigning of relative importance to intrinsic values, interests, etc, which will exercise significant clout over the issue of liability in that case, on which, see MacCormick, above n 4, p 168. However, as argued above, rather than functioning to determine the outcome of the application of the standard of review to a set of facts in a particular case ex post, it is submitted that the relative strength of the fundamental values and interests which underpin an employment right will operate to fashion the intensity attached to the standard of conduct ex ante. It is submitted that in identifying the ‘practical fairness’ criteria or policy considerations which operate to modify the standard of review and/or draw it at a different level of intensity of scrutiny than the standard of conduct, adjudicators are necessarily engaged in an exercise which involves an implicit appreciation of the fundamental values and interests which underpin a particular employment right. Another way of expressing the same point is to say that such ‘fairness’ criteria or policy considerations are conditioned by, and informed by, those fundamental values and interests. The distinction here between policy preferences and fundamental values is reflective of the Dworkinian distinction between policy considerations as ‘collective goals’ of the community and fundamental values in the sense of precepts which operate to organise and explain subsets of principles and other legal materials more generally such as rules, norms, standards, etc; on which, see Dworkin, R Taking Rights Seriously (London: Harvard University Press, 1977) p 90 Google ScholarPubMed; MacCormick, above n 4, pp 192–193. Having been taken into account ex ante to fix the level of intensity of the standard of review, fundamental values and interests ought not also to be applied as a means of resolving particular cases on the basis of a different standard of review ex post. Otherwise, the process would be open to the charge that it lacked legitimacy on the basis of the unwarranted ‘double-counting’ of those fundamental values and interests.

54. See above.

55. [1999] 3 All ER 974, which is applicable in the UK.

56. This conception can be contrasted with the ‘least restrictive means’ approach which has been adopted by the European Court of Justice in cases such as Bilka-Kaufhaus v Weber von Hartz [1987] IRLR 317 at para 36 and Enderby v Frenchay Health Authority [1993] IRLR 591, on which see A Baker ‘Proportionality and employment discrimination in the UK’ (2008) 37 Industrial Law Journal 305.

57. See above n 55, at 984h–j per Lord Nicholls of Birkenhead.

58. This is taken into account in fixing compensation.

59. [2004] IRLR 625.

60. [2004] IRLR 129 at [26]–[27] and [34] per McMullen J.

61. In terms of the Human Rights Act 1998, Sch 1, arts 8 and 10.

62. Application No 32792/05, [2009] IRLR 139 (ECtHR) paras 44–50.

63. Collins, H ‘the protection of civil liberties in the workplace’ (2006) 69 MLR 619 at 630–631CrossRefGoogle Scholar; Mantouvalou, V ‘Human rights and unfair dismissal: private acts in public spaces' (2008) 71 MLR 912 at 914 and 937CrossRefGoogle Scholar; and Mantouvalou, V and Collins, H ‘Private life and dismissal: Pay v Uk’ (2009) 38 Industrial Law Journal 133 at 134 and 137–138CrossRefGoogle Scholar. See also Vickers, L ‘Unfair dismissal and human rights’ (2004) 33 Industrial Law Journal 52.CrossRefGoogle Scholar

64. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA).

65. As noted by Jacob LJ in Khatri v Cooperative Centrale Raiffeisen-Boerenleenbank BA [2010] EWCA Civ 397, [2010] IRLR 715 at [8].