Employers must be reasonable about impact on human rights

Human rights issues, such as anti-terrorism legislation and immigration laws, are currently high on the political agenda as the general election approaches.

But in employment law, human rights have had an impact since the European Convention on Human Rights and Fundamental Freedoms was introduced in 1950.

The Human Rights Act incorporated convention rights directly into English law in October 2000. In recent months, three particular human rights have affected employment law, namely the right to respect for private and family life (Article 8), the right to freedom of thought, conscience and religion (Article 9), and non-discrimination (Article 14).

Respect for private life
The Court of Appeal in X v Y ([2004] IRLR 625) considered the scope of the convention (and the Act) when a claimant claimed that his private employer, a charity, breached his rights to respect for private and family life and non-discrimination.

The claimant, who worked with young people, was dismissed when his employer learned of his caution for gross indecency.

The court held that convention rights are not limited solely to relations between individuals and public authorities. The convention imposes a positive obligation on the state to secure observance of these rights between private individuals (without creating new causes of action against private sector employers). Tribunals, as public bodies, must give effect to convention rights, regardless of whether the employer is a public or private body.

The court also held that what constitutes ‘private life’ depends on the individual circumstances, such as whether the conduct is on private premises and, if not, whether there is reasonable expectation of privacy for that conduct. Sexual orientation and private sex life fall within the scope of rights to respect for private and family life and non-discrimination.

Covert surveillance
The Employment Appeal Tribunal (EAT) has considered the right to private life in the context of covert surveillance.

In McGowan v Scottish Water ([2005] IRLR 167), McGowan was suspected of falsifying timesheets, so the employer instigated covert surveillance outside his home (a tied house) to investigate.

His dismissal, which was held to be fair, was based on evidence provided as a result of that surveillance.

The EAT held that, while the surveillance interfered with McGowan’s right to private life, his right was not breached because the employer’s actions were proportionate to its aim of protecting its assets (the employer having considered other options before implementing covert surveillance), and justified and reasonable in the light of the gravity of the offence investigated.

Religious freedom
In the case of Copsey v WWB Devon Clays Limited (2004 WL 412973), the EAT considered the right to freedom of religion in respect of a requirement imposed by an employer, which was agreed by the unions, that employees work on Sundays.

The claimant claimed his dismissal for refusing to work on Sundays breached Article 9 because he was dismissed because of his religious beliefs.

However, the EAT held that the claimant was dismissed because he had refused to work when the business required him, not because of religious belief. The claimant could resign to practise his religious beliefs that were incompatible with his employer’s requirements.

Further, by offering the claimant alternative employment to reduce the likelihood that he would have to work on Sundays, the company had made reasonable accommodation for his religious beliefs.

This case was heard before legal protection against discrimination on the grounds of religion or belief was introduced.

The fact that the employers were successful in defending all of the above claims regarding breaches in human rights will not deter employees who are increasingly aware of their legal rights and are prepared to ensure their rights are protected.

Employers should have regard to employees’ human rights and ensure any steps they take have minimal impact on those rights, or are justifiable and proportionate where impact cannot be avoided.

  • Learning points for HR

    Try to limit the impact on employees’ human rights wherever possible
  • Balance business requirements against the protection of employees’ human rights
  • Where the human rights of employees may be affected, consult with staff, and consider representations made, before taking steps that have an impact on those rights
  • If the requests made by employees relating to their human rights cannot be accommodated, record the reasons for that decision to confirm that the motivation for the decision is unrelated to the employees’ human rights
  • Ensure that measures affecting the human rights of employees are proportionate in the circumstances

Jennifer Armstrong is an associate at law firm Bristows

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