Applying the Public Law Principle of "Proportionality" in Contexts of the Private Law of Employment; a Comparative Study of the Legal Approach in Britain and Palestine.

Abstract

This research presents a study on the principle of proportionality in public law, and the extent to which this principle can be included and adopted in the employment relationship as a modern test to verify the legitimacy of an employer's decision to restrict or modify the rights of workers. The mechanism for expanding the principle of proportionality according to the Western approach, especially the British, and its migration to Arab countries is also discussed. Based on this, this research will prove that the principle of proportionality is already used in employment law and plays an important, though implicit, role in employment legislation and the decisions of Arab employment courts, where Palestine will represent a model for Arab countries. Therefore, the research will demonstrate that the principle of proportionality assists employment courts in achieving a fair balance between ensuring ‘business efficiency’ and ‘employees’ dignity and legitimate expectation. It gives the employer the right to override decisions that have created legitimate rights or expectations for employees as long as there is a legitimate reason for doing so. However, employment law requires employer’s decision-making to consider the impact on employees' rights and their legitimate expectations, so the stronger their rights, the greater the justification required by the employer for overriding or changing them.