Using criminal law to enforce statutory employment rights

This chapter examines the current terrain of criminal law as a technique of labour market regulation. It identifies a range of possible interactions between the criminal law and civil law in the legal enforcement of labour standards. Sometimes fundamental labour rights, such as the right not to be unfairly dismissed or the right not to be discriminated against, are protected exclusively through a ‘private’ enforcement model at the initiative of the individual right-holder. Sometimes there will be exclusive enforcement through the criminal law with no private right of civil action, as under the Health and Safety at Work Act 1974. Finally, there may be mixed enforcement regimes where there is a combination of criminal and civil measures linked to specific statutory rights, as with the enforcement of the National Minimum Wage Act 1998. Having mapped out the relationship between labour law and criminal law and enforcement in these terms, the chapter goes on to discuss the salience of the 'negative' and 'positive' aspects of the 'public wrongs' theory associated with commentators such as Duff against this backdrop. The chapter goes on to make the claim that the antipodean framing of ‘public versus private’ in the 'public wrongs' theorization of what properly belongs to the criminal law is indeed of some utility in predicting the prevailing legislative position concerning statutory employment rights. Whilst the results stemming from the adoption of the negative incarnation of public wrongs theory were rather banal, in the case of the positive version, we were taken much further down the track in the search for an account of what should be criminalized in the case of statutory labour laws.