Public Employment and Access to Justice in Employment Law

This paper discusses and analyses the current evolution of the exceptional employment law rules governing (certain) public sector employment and the implication of that evolution for access to justice for public employees. It starts with an analysis of the origins and justifications for the separation of the regulation of ‘private’ as opposed to ‘public’ employees and how that separation has evolved over time. The article then proceeds to outline some of the possible critiques of that separation and the potential for the challenge to that separation in theoretical terms. In the third section, there is an assessment of the practical ways in which way public employees have recently sought to challenge this separation, and particularly their exclusion from private employment law rights. It discusses the reasons for the varying degrees of success of that challenge. The final section proceeds to discuss how far public law may step in to counteract the exclusion of public employees from the employment law regime. In particular, there is a discussion of the realisation within the public law arena of a need to relax the strict separation of the public/private regime and the need to cater for particular individual circumstances.