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Human Rights

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Employment Law and The Human Rights Act 1998

The Human Rights Act 1998 (‘the Act’) came into force throughout the UK on 2 October 2000, giving effect to the European Convention for the Protection of Human Rights and Fundamental Freedoms.  The implications are:

  • Legislation has to be interpreted subject to Convention rights, so far as it is possible to do so.
  • Public authorities have to respect Convention rights and it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
  • Courts and tribunals have to give remedies for human rights violations.

The Convention comes complete with a developed body of case-law which our courts must take into account.  In addition, since the Act came into force, case-law is continually being developed by our courts.  It affects many areas of public and private rights.  

This fact sheet looks at the various Convention rights and examines the impact of the Act on employment law for private, as opposed to public, employers.

The Convention rights

  • Right to life.
  • Prohibition of torture.
  • Prohibition of slavery and forced labour.
  • Right to liberty and security.
  • Right to a fair trial.
  • No punishment without lawful authority.
  • Right to respect for private and family life.
  • Freedom of thought, conscience and religion.
  • Freedom of expression.
  • Freedom of assembly and association.
  • Right to marry.
  • Prohibition against discrimination.
  • Protection of property.
  • Right to education.
  • Right to free elections.

Rights between private parties

First of all, you should note that the obligation not to act incompatibly with Convention rights only applies to public authorities, not to private individuals or businesses.  Thus, Convention rights are not directly enforceable against private employers.  However, this does not mean that Convention rights have no bearing in private law disputes.  Courts and tribunals (including the Employment Tribunal) are public authorities for the purposes of the Act and are therefore obliged to act compatibly with Convention rights.

So, whilst a private individual or business has no new causes of action arising out of Convention rights:

  • Proceedings before courts and tribunals must respect a litigant’s rights to a fair trial.
  • Remedies ordered by courts and tribunals must not infringe Convention rights.
  • Litigants are entitled to expect courts and tribunals, in interpreting and applying the common law, to act in a way that is compatible with Convention rights.

Therefore, Convention rights have an effect on shaping existing common law causes of action.

Employment law context

Convention rights are likely to arise in the following contexts relating to private sector employees:

  • Unfair dismissal claims. Dismissal for a reason in breach of a Convention right may be considered incapable of constituting a valid reason for dismissal or, alternatively, an employer may be held not to have acted reasonably in treating such a reason as sufficient for dismissal.
  • Constructive dismissal claims. It could be the case that individual rights of employees are given greater weight by an Employment Tribunal than the managerial interests of the employer.  Violation of a Convention right may give rise to the employee resigning, claiming breach of the implied term of mutual trust and confidence leading to constructive dismissal.

That said, the Act has not had the extensive impact that many commentators thought it would.  The Employment Tribunal has appeared reluctant to interpret it too broadly and so there have been very few employment law cases where Convention rights have been upheld.

Application of specific Convention rights to employment law

  • Right to respect for private and family life (the right to privacy)

There are many means in the work place of interfering with employees’ privacy.  For example:

  • Drug and/or alcohol testing of employees, which is usually undertaken to deter or detect drug and alcohol use amongst employees, or to assess their suitability for a particular post, particularly from the point of view of health and safety.
  • Monitoring and surveillance of employees’ telephone calls, letters, e-mail and internet use, installing CCTV, searching desks, security checks, etc. The purposes here are usually to promote efficiency by checking performance and/or to discover and eliminate wrongdoing or excessive use.

The Convention provides a right capable of protecting invasions of privacy.  In order to defend any unfair or constructive dismissal claim, employers must ensure any monitoring or searching does not go beyond acceptable means of protecting their business. However, it is not unreasonable for an employer to monitor what an employee is doing when they are engaged to work (i.e. an employee will be entitled to limited rights of privacy in these circumstances).

Employers therefore need to ensure:

  • There is some way in which employees can make or receive private calls without being monitored or recorded e.g. the provision of a payphone.
  • Adequate unmonitored private space is made available e.g. toilets, staff rooms, canteens.
  • Employees are informed that monitoring, recording or drug/alcohol testing may take place and the reasons why – and this should be written into employees’ contracts of employment.  (For existing employees, their express agreement to changes to their contracts will be needed).
  • Monitoring, recording and testing are restricted to situations where they are necessary and proportionate to the problem to be overcome. 
  • The least restrictive means of protecting the employer’s interest is adopted.
  • Only individuals who pose a risk are subject to interference.
  • Employees are given access to the information gathered.
  • The information gathered is accurate and kept confidential.
  • The information is only kept for the period of time necessary to deal with the problem.

·Freedom of thought, conscience and religion

Where there is discrimination on grounds of religious belief, this can constitute breach of a Convention right and make the dismissal or constructive dismissal unfair.  In addition, it will also probably constitute religious discrimination.  However, claims under the Convention for time off work for religious observance have so far been unsuccessful. 

  • Freedom of expression

The Convention provides a right for an employee to express his views and opinions.  There could be problems if an employer dismisses an employee on the grounds of their political affiliation or views because, as before, the employee could argue their dismissal was in breach of a Convention right and therefore unfair. 

The freedom for an employee to express their views and opinions may come into conflict with the employer’s right to manage the work place.  As regards the employee’s freedom to speak out against the interests of the employer, there is likely to be a difficult balancing exercise between the employee’s rights to free expression and their duties of loyalty to the employer.  The contract of employment may affect the extent to which the employee has a right to free speech, so its provisions should be checked.  It is likely to be legitimate for an employer to restrict freedom of speech to protect confidential information or his business reputation.

The freedom of expression also extends to the way a person dresses.  Currently, under UK law, there is no general protection of this aspect of freedom of expression, unless a dress code can be shown to be discriminatory on grounds of sex, race or religion.  Under the Convention, there is no need for a comparison between the sexes or races, etc.  The issue will simply be whether a dress code or a restriction on dress is justified.  Where health and safety is in issue, an employer may justify the restriction.  However, if an employer’s rule is based simply on his own idea of smartness, justification may be more difficult.  Much will depend on the context of the work place.  It will be easier to justify restrictions where the employees are in a customer service role and are meeting members of the public.

  • Freedom of assembly and association

This can include the right to join a trade union, and the right to refuse to join a trade union.  The European Court of Human Rights has held that Article 11 confers a positive obligation on authorities to provide protection against dismissal of an employee on grounds that the employee was a member of a specific political party. However, it remains to be seen how the UK Government will provide for this protection to be incorporated into UK law.

  • Right to a fair trial

A litigant in an employment dispute is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Employment Tribunals have to comply with this requirement.

  • Prohibition of torture and inhuman or degrading treatment

Note that particularly gross forms of harassment may amount to inhuman or degrading treatment.   This may assist employees where acts of harassment occur in the workplace, but they are not on the currently unlawful grounds of sex, sexual orientation, race, religion or belief, age or disability.  For example, where there is serious but non-discriminatory bullying of one employee by another employee.  If the employer turns a blind eye and the employee resigns as a result and claims constructive dismissal, the employee could raise the breach of this Convention right to support their claim.

  • Prohibition against discrimination

This provision does not give a free-standing right to freedom from discrimination.  It is the right to enjoy the other Convention rights without discrimination.  It concerns inequality in treatment in the enjoyment of the other Convention rights.

Summary

Although the Act is having a greater impact on public sector employees because they have directly enforceable rights under the Act, private sector employers should not assume the Act has no significance for them.  They should review their policies, practices and procedures in the light of the various Convention rights.  Private sector employers should then have the Act in mind when dealing with certain situations at work.  If a particular right is interfered with, the employer will need to be able to justify his actions if challenged. 

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.