The Principle of Proportionality in Labor Law and its Impact on Precarious Workers

Abstract

The principle of proportionality is a key legal tool used in human rights' settings. It usually includes three tests, examining the relationship between goals and means in the achievement of some legitimate goal: there has to be a rational relation between the means and the goal; the means chosen should impair rights as minimally as possible; and the gains should be proportional to the price in terms of rights' infringement. I argue that these tests are used (although sometimes without reference to the explicit term "proportionality") in many labor law contexts, including in the private sector. Examples will be given from Israeli case law. I then argue that the use of these tests in the labor law context is justified and should be further extended, albeit with some limits. In this regard, special attention will be given to strategic and distributive considerations: to what extent can the principle of proportionality be used to improve the situation of precarious workers, as opposed to stronger workers.