Agitating for Part‐Time Workers' Rights
In Spring, negligence again presents itself as the avenue through which judges reform private law. The emphasis throughout was on negligence, although the speeches of Lords Woolf and Slynn demonstrate that contract could have provided a remedy. It is somewhat surprising that the contractual analysis did not dominate the speeches, especially since Scally indicates that the contractual analysis should be preferred in cases involving harm arising from employment.54 Yet only Lord Woolf held that the 'primary source of any liability is contractual rather than tortious,' since the relationship with the defendants arose from the previous engagement;55 the other Law Lords did not address the point. We might also ask what would have happened if the plaintiff had brought the action in defamation. Would their Lordships have found a remedy by reforming the law of defamation? For example, would they have held that qualiE1ed privilege should not be available to employers or, if available, it should be rebuttable by proof of carelessness rather than malice? Certainly, Derbyshire County Council v Times Newspapers56 suggests that the House of Lords is willing to take a fresh look at the rules of defamation where political values are at stake; would it do so where more personal or commercial values are at stake? It seems doubtful57; perhaps the employer's qualified privilege has stood too long in a tort 'beyond the redemption of the courts'58 for the judiciary to re-examine it.59 And perhaps the return of a more liberal view of negligence makes it unnecessary.