THE MARSHALL & GALPIN GUIDE TO THE HUMAN RIGHTS ACT 1998

The Human Rights Act 1998 (“HRA”) came into force on 2^nd October 2000 to a clamour of publicity. There has never been any doubt that this legislation would have an important bearing on the manner in which employers would treat their employees, whether in the private or public sector. Previously only accessible via the European Court of Human Rights, the new rights conferred under the Act mean individuals may now seek redress through the domestic courts. Consequently human rights principles have pervaded the consideration and interpretation of employment law by courts and tribunals. Many employers have subsequently had to revise and review their policies and procedures to ensure compliance.

HOW HAS THE SYSTEM CHANGED?

The backbone of the legislation is that all public authorities must act in a manner compatible with the rights granted under the HRA. Hence there is a direct course of action via an employment tribunal or the courts for breaches of human rights by the employees of public bodies (including quasi public bodies e.g. BBC, Railtrack etc.). Employees of private sector employers have a more indirect route i.e. all legislation must be read by the judiciary in a manner giving primacy to the

HRA rights, so the employee would need to bring a statutory claim and then argue that the HRA has been breached.

SPECIFIC AREAS OF RELEVANCE TO EMPLOYMENT LAW

Before considering the issues likely to raise problems in the context of employment law, it is important to note that the courts and tribunals must apply the principle of proportionality when considering the rights under the Convention. The judiciary must find a “fair balance” between the protection of individual rights and the interests of the community at large. Consequently in practice it is likely that a fair balance will only be achievable by limiting the scope of individuals to assert their Convention rights to only what is absolutely necessary.

LONG HOURS

There is speculation that the long hours work culture in the UK will be open to challenge under Articles 4 & 8. Potential claims may be brought by those opting out or exempted from the Working Time Regulations 1998 e.g. junior doctors. The arguments likely to be raised are that the individual has been coerced into working long hours or in an environment causing stress-related illness on threat of dismissal. However, to date, no forced labour or stress claim has succeeded in Europe. The fact that the employer-employee relationship is contractual means the employee may resign and leave if placed under such obligation. Further the level of suffering required to qualify as in-human/degrading is likely to exceed what is normally found in the work place. In any event the existing legislation covering working time, bullying, sex discrimination etc. exceed the Convention rights.

INTERNAL DISCIPLINARY & GRIEVANCE HEARINGS

Article 6 guarantees everyone to have their civil/criminal rights determined at a fair and public hearing by an independent/impartial tribunal. It is argued that this right extends to internal disciplinary/grievance hearings. Such arguments are unlikely to succeed because such proceedings do not require the determination of a civil right and secondly the requirement for a public and impartial hearing is satisfied by the employee’s right to complain to an employment tribunal. NB disciplinary/grievance proceedings carried out by professional bodies e.g. General Medical Council may be susceptible to challenge where their actions determine a civil right e.g. disbarring the member from the profession (see König –v- Germany [1979] 2 EHRR 170).

COMMUNICATIONS

The right to privacy will inevitably lead to an examination of the employer’s right to monitor employee correspondence, telephones, e-mail and internet usage at work. An important case involving a senior police officer having her telephone calls tapped by her employer resulted in the employer being found in breach of the right to privacy (Article 8) because the employee had a reasonable expectation of privacy in the absence of advance warning (see Halford –v- United Kingdom [1997] IRLR 471). The position has been added to by the implementation of The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000. Under these regulations the employer may intercept electronic communications in limited circumstances without first notifying the employee. In all other circumstances, employers would be well advised to set out clear policy guidelines for employees on communications usage so that the expectation of privacy may be removed or tempered.

STORAGE & DISCLOSURE OF EMPLOYEE DATA

The right to privacy includes an employees right to keep personal information private. Although the employer has a legitimate expectation of certain personal data, this must be limited to what is necessary for the employer to govern the employee’s work. The disclosure of information to third parties must be with the employee’s consent or without such consent in limited circumstances set out in Article 8(2). Medical information receives special mention.

TIME OFF FOR RELIGIOUS OBSERVANCE

The right to hold religious beliefs is absolute but how these beliefs are to manifest themselves are subject to limitations. The chief arguments are likely to revolve around the conflict between the individual’s right to worship and his work obligations. Arguments that an individual is entitled to time off work for religious holidays or days of rest have failed to find favour in the European Courts (see Ahmad –v- UK [1982] 4 EHRR 126). Other legislation may provide limited protection, see further The Race Relations Act 1976.

DRESS CODE & GENERAL APPEARANCE

The right to freedom of expression may extend to the manner in which an individual dresses. This has implications for dress codes at work particularly those that require employees to wear ‘reasonable’ or ‘appropriate’ clothing to work. It will be open to interpretation as to what shall constitute such apparel. Further any code that differentiates specifically between the sexes e.g. prohibiting women wearing trousers, may be in breach of both Articles 10 & 14 combined. There is, however, protection afforded to employers who may able to show justification for such codes if they are the protection of reputation or rights of others (including themselves).

FREEDOM OF ASSOCIATION & ASSEMBLY

Article 11 grants a right to freedom of association but there is no express right to strike. Most Trade Union commentators will argue that such a right is meaningless without the right to strike, however, the European Courts appear content to let each individual state impose their own restrictions as necessary for a democratic society. The rules relating to picketing may also be open to question particularly the restriction of picket numbers to 6. Interestingly Article 11 does not appear to give the individual a right to join a trade union.

DISCRIMINATION

Article 14 does not provide an independent and freestanding right not to be discriminated against. It operates by requiring the individual to show that any discrimination suffered was in relation to another act that fell within the ambit of the other Convention Articles. NB the activity being relied upon does not need to infringe the other Convention right. Additionally the list of characteristics stated in Article 14 is non-exhaustive thereby allowing the judiciary a certain degree of flexibility.