The human rights act 1998: Employment Rights for the 21st Century
The human rights act 1998: Employment Rights for the 21st CenturyOn 1 Sep 2000 in Personnel Today Related posts:No related photos. Previous Article Next Article Comments are closed. Makbool Javaid, Partner at DVL, reviews the implications of the Human RightsAct for UK employersThe Human Rights Act [HRA] which comes into force on 2 October 2000incorporates the European Convention on Human Rights into UK law. Consequentlyapplicants will no longer need to incur the cost and delay of taking cases toStrasbourg. They will now be able to enforce their Convention rights in UKcourts and tribunals. The UK’s resistance to take this measure earlier had led to a large numberof applications to the Strasbourg court, a significant proportion of which weresuccessful. The high number of applications was fuelled by the failure, upuntil recently, of the courts to take account of the Convention wheninterpreting English law. The Convention is a product of the Cold War, it cameinto force in 1953. For ideological reasons the Convention ignores social andeconomic rights but instead concentrates on those of a civil and, or, politicalnature. There has been intense media interest regarding the Act and its implicationsbased largely on a fear that it will lead to an erosion of parliamentary sovereigntyand an increase in the ability of judges to make laws. This is ironic given thefact that the Act and the Convention are ostensibly designed to curb the powerof the state. Moreover, the alarmist predictions fail to take into account therestrictive approach taken by the Strasbourg court to employment related claimsand ignore the protection afforded by existing UK law. The Act operates principally by placing a statutory duty on courts andtribunals to interpret legislation in a way which gives effect to Conventionrights. The Act also provides that it will be unlawful for public authoritiesto act in a way which is incompatible with Convention rights and gives anindividual who believes that a public authority has acted unlawfully and who isa victim of that unlawful action, the right to bring proceedings before a courtor tribunal. Therefore, it seems that the Act only impacts on public authorities. A morecomprehensive analysis reveals the following. – If the employer is a public authority, a direct claim for breach of theHRA can be made against it since a “standard” public authority mustact in accordance with the Convention in all its activities . – If the employer exercises mixed public and private functions, so that itdoes not readily fall into the category of a public authority, an analysis willhave to be made of the function which infringes the Act. Examples of bodiesfalling into this category are the new Financial Services Authority, Railtrack,the BBC , the privatised utilities, doctors in general practice and the PressComplaints Commission. Thus, Railtrack is a public authority when it exercisespublic functions in its role of safety regulator but acts privately in relationto land development. The approach to take is to ask whether but for the existence of thenon-statutory body, the Government itself would intervene to regulate theactivity in question, or whether the body is “woven into a system ofgovernmental control”. When exercising public functions, such a body mustapply Convention rights. In relation to private functions, there is no suchobligation and it would appear that employment is viewed by the law as afunction of a private nature. Consequently, applying a functional test toanalyse the activity in question, such employers will argue that the Conventiondoes not apply in employment disputes involving them. – If the employer exercises no function of a public nature then it can beproperly regarded as a private employer against which a direct claim for breachof the HRA cannot be sustained [ie “free standing” claim which is notlinked to another claim- see below]. Horizontal effect of HRA – the non-public authority employer It would be a mistake to assume that an employer with mixed functions or,one that is purely a private employer can ignore the HRA. Employees can stillargue that a non HRA claim has to be considered in light of the Act so as to beconsistent with any right granted by it. This is because courts and tribunalsare obliged as public bodies to comply with the Convention when deciding cases,including cases between private persons. In many instances, the HRA has rights which are not just”negative” which seek to control the state interfering with theliberty of the individual, but which impose a positive duty on the state toprotect positive freedom. For instance, the state has to ensure that theenjoyment of the rights is effective and prevent interference of such enjoymentby other private persons. Thus, the court and tribunals may themselves be in breach of the Act if theyfail to provide a remedy where there has been infringement by a third party.The employee will need to identify an existing domestic or European claim inrespect of which the tribunal already has jurisdiction to “hang” the Conventionargument on. The Tribunal will then be required to interpret the statutoryprovisions governing the action wherever possible. More significantly, where European community law is an issue, thefundamental rights enshrined in the Convention need to be taken into account inthe construction of EC law. This is illustrated vividly by the fact that theEuropean Court of Justice interpreted the Equal Treatment Directive in such away as to protect transsexuals from discrimination even though the directivewas clearly aimed at preventing discrimination on the grounds of sex [P v S& Cornwall County Council] . This decision was followed by a further remarkable interpretation of The SexDiscrimination Act in order to afford protection to a transsexual even thoughhe was employed in the private sector [Chessington World Of Adventure Ltd vReed]. The use of the European Community standard will be unavoidable once TheCharter of Fundamental Rights for the European Union is agreed at the Octobersummit in France. Public Authority Employers A public authority employee will have a direct claim for damages or aninjunction if there is an infringement of the HRA. It is a defence for thepublic authority to demonstrate that it acted in the way that it did because itwas required to do so by UK legislation. In that case the only remedy would beto obtain a declaration of incompatibility from the Court of Appeal (unless theclaim was brought in the High Court) – the EAT will not have the power to makesuch a declaration. Interestingly, even when a declaration of incompatibility is made, the oldlaw still stands but it does provide the Government with a trigger to use anaccelerated procedure to bring in amending legislation. In those circumstances,there appears to be little benefit to be gained unless the alleged breach has acontinuing effect on the employee. Despite extensive speculation in the press, HR and legal journals about thelikely impact of the HRA, employers can be forgiven for being confused by thediverging views. The analysis set out below therefore attempts to take ameasured position and avoids the more extravagant claims. Internal Disciplinary/Grievance Proceedings Article 6 guarantees the right to a fair and public hearing within areasonable time before an independent and impartial tribunal in thedetermination of a dispute concerning a “civil right”. It alsoguarantees a genuine and effective access to a court for the purposes ofdetermining those civil rights and no derogations are permitted. It has been arguedthat Article 6 applies to internal procedures, for example, disciplinary orgrievance. This cannot be right since such proceedings do not determine a civilright. In any event the right to a fair and public hearing is satisfied by thefact that the employee has access to the Employment Tribunal which can dealwith all aspects of the dispute. Existing Strasbourg case law has already ruled that disputes relating to theprocedural fairness of recruitment to or termination of civil serviceemployment falls outside the scope of Article 6. However, where thedisciplinary proceedings relate to the right to practice a profession theseproceedings to concern civil rights. Therefore professional disciplinary bodiesand self regulatory organisation need to take account of Article 6 issues. Many of the rights protected by article 6 are probably already covered bythe existing tribunal procedure and the concept of natural justice. However,Article 6 may have an effect on some procedural questions relating to the waythat cases are dealt with by tribunals, i.e. over-reliance on written evidenceor refusal to transfer claims to a tribunal chosen by one of the partiesbecause of travelling or other difficulties. Privacy and family life Article 8 guarantees the right to respect for private and family life. Inrelation to security measures at work, the Strasbourg authorities have accepteda general right to privacy within the office. Any interference withcommunications by staff – telephone calls and e-mail etc., will come within theprotection guaranteed by Article 8. Interference can be justified only if it is “in accordance with thelaw” and “necessary in a democratic society” for one of a numberof purposes, namely “in the interest of national security, public safetyor the economic well-being of the country, for the prevention of disorder orcrime, for the protection of health and morals or for the protection of therights or freedoms of others.” Consequently, any interference such as the use of CCTVs or e-mail will needto be justified. This may not be difficult since, in the case of the former anemployer may argue that it was done to protect the rights of others (e.g. toprevent stealing or fraud). As for the latter the argument would need to bethat it was necessary to protect the rights of fellow employees to ensure thatemployees were not sending offensive e-mails which amounted to harassment. The right to respect for private life also entails the right to keeppersonal information confidential. An employer is entitled to seek personaldata and an employee has no expectation of privacy in relation to reasonablerequirements for information. However, the information required ought to belimited to what is necessary and any intrusive questions about personal mattersmay not be justified. Furthermore, disclosure of personal information to third parties withoutconsent could amount to interference with the employee’s right to respect forprivate life. Such disclosure may be permitted under the exceptions set outabove although it ought to be noted that particular importance is likely to beattached to the confidentiality of medical information. “Private Life” includes a right to respect for personal identityincluding sexual identity, moral or physical integrity, sexual activities andpersonal relations. In the context of the private employer this right is likelyto be invoked as an aid to interpret the unfair dismissal and sexdiscrimination provisions. For example, in relation to dismissal of a gayemployee, or an employee who breaches a dating policy prohibiting relationshipsat work, the employer will have to bring the defence within the exception tothe right on the basis that, for example, the rule was necessary to protect therights and freedoms of others. Freedom of expression Many have claimed that the right to freedom of expression will entitleemployees to wear whatever they like. In other words that employers will beunable to impose standards of reasonable dress. The Strasbourg case does notsupport such a proposition. Certainly, employees will need to exhibit greaterflexibility in relation to standards of dress. Most employers already exhibitthis flexibility particularly in relation to cultural and religiousrequirements capable of being the subject of an indirect discrimination claimunder the Race Relations Act 1976. As for expression of views and opinions inthe workplace or even outside of working hours, the existing case law appearsto strike the right balance between the interests of employer and employee,although an employer may have to establish that the dismissal was reasonably”necessary” in order to justify it. Freedom of thought, conscience and religion Article 9 of the Convention guarantees the right to freedom of thought,conscience and religion. Strasbourg case law has placed an extremelyrestrictive interpretation of this right allowing, for instance, contractuallimitations, to curtail the right to manifest religious belief. It is unlikelythat the UK will follow the Strasbourg line of cases, in which case there isfurther scope for the development of religion based rights. Currently, theprotection afforded to employees, and prospective employees, from religious discriminationflows from the indirect discrimination provisions of the Race Relations Act1996 [although the employee has to establish that their religion coincides withmembership of an ethnic group or that there is a greater impact on members of aspecific ethnic group]. Freedom of assembly and association Article 11 of the Convention guarantees the right to freedom of association,including the right to form and join a trade union. The negative right of notbeing forced to join a union is also protected. Both negative and positiverights are subject to exceptions. Once again, the Strasbourg authorities haveadopted a narrow interpretation of Article 11 and it is unlikely that it willadd anything to the protection available under existing laws. Discrimination Article 14 provides that the enjoyment of Convention rights must be securedwithout discrimination on any grounds such as sex, race, colour, language,political or other opinion, national or social origin, association with anational minority, property, birth or “other status”. It is importantto remember that the right does not sit independently but is linked to theenjoyment of convention rights. For example, if an employer treats differentclasses of people in different ways, that distinction of treatment could bechallenged unless it was objectively justifiable. In order to establish this anemployer will need to show that the distinction has a legitimate aim and thatany difference of treatment was proportionate. It is unlikely that there will be any significant development in the areasof discrimination based on race, sex or disability in light of the existinglegal framework. However, there may be room for claims to be broughtchallenging differences of treatment on the grounds of religion, sexualorientation or age, where those differences are linked to enjoyment of theConvention right. Conclusion The Government has expended considerable resources in raising awareness ofhuman rights among the judiciary and senior civil service by undertaking anextensive training programme. Without doubt employers in the public sector willhave to respect Convention rights and act in accordance with them. Thepublicity campaigns launched by the Law Society/ Bar Council recognise thepotential for a proliferation of human rights claims. Even before the Act hascome into force we are witnessing a greater reliance on and reference toConvention rights. The recent ruling that conducting a Tribunal hearing in a room that thepublic may not have had access to amounted to breach of the Tribunal rules [noConvention rights were at issue – Storer v British Gas Plc] indicates that theHRA will be taken seriously in the employment context. The real test will be tosee the extent to which tribunals have regard to Convention rights wheninterpreting legislation and existing case law. It is this “horizontal” application of the Convention and thestringency with which public employers are made to establish thattransgressions are justified and proportionate that will be important. If, asit appears to be the case, the tribunals are bold in their approach then theConvention will inform and regulate to a greater extent the employmentrelationship than we have witnessed hitherto. Employers need to engage in an audit of existing policies and procedures tobe secure in the knowledge that they are not going to be a party to theinevitable test cases that are going to be brought. Those unfortunate employersare going to suffer in the same way as the ones who gambled that each newdiscrimination statute was going to be a damp squib and end up being held up asexamples of why the mantra of the modern employment lawyers is that preventionis always better than the cure.