Ensuring fair play

fair hearing relies heavily on the establishment of the facts, and many of
these facts will concern the litigant’s personal data. It is vital for the
occupational health department to understand the impact of the Human Rights Act
in these cases, By Linda Goldman and Joan Lewis

The Human Rights Act 1998 provides a legal basis for the fundamental right
to a fair trial. This is reflected in all employment law procedures, both in
the procedure adopted and in the way that evidence is amassed.

There is a strong link between the right to a fair trial as prescribed in
Article 6 of the Act and the right to respect for private and family life under
Article 8. The latter is closely concerned with aspects of confidentiality,
which underline the ethos of the occupational health profession.

There is a further link to the Data Protection Act 1996 (DPA), for which
part 1 of a Code of Practice has now been issued to deal with employment law
matters. Two recent cases heard by the European Court of Human Rights highlight
the essentials of a fair hearing.

Establishing the facts

The starting point in any litigation, whether it is against or by the
smallest legal entity, an individual, or the largest, the State, is the
establishment of the facts. Many of the facts concern the litigant’s personal
data. The Employment Practices Data Protection Code in respect of recruitment
and selection has at last been published. All 56 pages are now available from
the Information Commissioner at www.dataprotection.gov.uk

The Code has the purpose of establishing trust in the workplace, relying on
transparency of information held on workers in an organisation. The Code
complements the DPA, it does not replace it, as the DPA states the legal framework
and remains the prime compliance source.

The data is, at all times, the personal property of the individual to whom
it relates. The important point for the occupational health team to remember is
that data should only be kept for the purpose for which it is needed and for a
justifiable period.

In employment terms, the human resources department will consider the length
of time it is necessary to keep references or disciplinary warnings, but some occupational
health records will have a more subjective effect. Ill-health records may need
to be kept with an eye on personal injury litigation. For example, three years
is the limitation period running from the date of knowledge of the accident or
injury for a claim in negligence. Where further health records must be kept
because of the risk of long-term illness, such as asbestosis or other chemical
or product-related issues, a view should be taken on maintaining records for

The central factor in the age of data enlightenment is the individual’s
knowledge of what is being held and why the data is being kept, for however
long. In other words, consent should not only be received but a full
explanation should be given. We are turning towards the concept of ‘informed

The Commissioner points out that following the Code will protect employers
from litigation, but it also follows that keeping a fair record of the facts
may dissuade a disgruntled employee from taking off to court when a problem cannot
be resolved.

Some recent cases under the Human Rights Act show how concealing the facts
from individuals can lead to massive levels of litigation from the employment
tribunal right up to the European courts.

Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head
of training and education for ACT Associates and Virtual Personnel. Joan Lewis
is the senior consultant and director of ACT Associates and Virtual Personnel,
employment law and advisory service consultancies and licensed by the General
Council of the Bar in employment matters under BarDirect.

Recent cases under the Human Rights Act

The right to a fair hearing: Goliath v David

The case of Fogarty v United Kingdom, 2002, IRLR 148 illustrates how, even
with right on the side of the little person, the big fellows can win.

Mary Fogarty worked for the United States Embassy in London in a post that
was part of the Central Intelligence Agency – the CIA. She was dismissed in
1995 and succeeded in a claim for sex discrimination in the Employment Tribunal
under English law. The claim was against the United States of America as her
employer, and was based on Fogarty’s allegations of persistent sexual
harassment by her supervisor while she worked for the CIA. She was awarded
compensation of £12,000 after the hearing in May 1996.

While she was awaiting the hearing, Fogarty started a short-term contract in
another part of the US Embassy but was not appointed to any of the several
other posts for which she applied on the expiry of that contract. She took that
to be victimisation, claiming that the refusals were a detriment arising out of
the fact that she had brought the successful sex discrimination case to the
Employment Tribunal.

In the original case, the Embassy had not sought to avoid liability by
claiming diplomatic immunity, but did so the second time around. This meant
that Fogarty was unable to have her case heard. She therefore complained to the
Government of the United Kingdom that her right to a fair trial under Article
6(1) of the Human Rights Act had been breached by the doctrine of State
immunity because she was denied access to a court. The application was referred
to the European Court of Human Rights.

She contended that it was unreasonable to block her access to a fair hearing
since her claim was about sex discrimination, "freedom from which is one
of the core values of a democratic society". She pointed out that she had
no other recourse to justice since the US was not prepared to waive its right
to immunity. She also argued that, even though the law provides for diplomatic
immunity, there was no reason why the UK should actually grant the immunity.

The Court took the approach of finding that the grant of State immunity was,
in effect, a form of procedure designed to prevent an individual pursuing a
claim before an Employment Tribunal, unless the State concerned was prepared to
waive immunity. Her claim failed because the Court took the view that the grant
of State immunity is generally recognised in international law and is not in
excess of "the margin of appreciation" allowed to governments in
limiting an individual’s access to court. The "the margin of
appreciation" is the legal terminology for leeway in interpretation.

It appears from this case that State immunity outweighs the right to a fair
trial conferred by Article 6. This might not necessarily be right, but it can
operate to ensure survival of one of the fundamental underpinnings of the way
that States operate their embassies and legations so as to be protected from
civil claims.

National security: David v Goliath

Arguably, sex discrimination issues fall within the ambit of direct
occupational health interest because of the adverse health effects on the
individual affected. There is therefore a direct interest for occupational
health personnel to ensure both that sex discrimination is prevented and, if it
has happened, that justice should prevail in dealing with the assailant and
compensating the victim.

However, the right to a fair hearing extends beyond any one specific field.
It is logical, as well as a legally enshrined human right, that an individual
who has a complaint should be able to have it heard from the level of raising a
grievance to the highest court in the land or, indeed, Europe. The power of the
State in preventing such access is formidable, as discovered by Fogarty.

When Mr Devlin took on the UK, he managed to establish an individual route
to the fair hearing needed to dispose of his case, which involved
discrimination on the grounds of religion (Devlin v United Kingdom, 2002, IRLR

Like Fogarty, Devlin was an Irish national. Back in 1991, he wanted to work
in a clerical post for the Northern Ireland Civil Service. He passed the
requisite civil service examinations but by October 1992, it transpired that he
would not be offered an appointment. He suspected that the only point that
could have been against him within the system was the fact that he was a
Catholic. Specific Northern Ireland legislation prevents discrimination on the
grounds of religion by the Fair Employment Act.

In 1993 he learned that the refusal of employment had been made on
"security grounds", which is a justifiable reason under the Act. The
effect of this part of the law was that he was unable to apply to have the
decision overturned within the national system.

In an earlier case, it had been held that this provision of the Act did
infringe Article 6, but the UK argued that the civil service was a special case
and employment within it did not amount to any civil right. The European Court
of Human Rights did not agree with this approach and awarded Fogarty £10,000 in
damages for breach of the right to a fair hearing as he had indeed been blocked
in bringing a case to the Fair Employment Tribunal.

In a case brought against France in 1995, Pellegrin v France, distinguished
civil servants acting within the public service sector who "wield a
portion of the State’s sovereign power" are those who would not be
protected by Article 6 in the event of a dispute about employment. The Court
pointed out that the right to a court hearing is not absolute, as there need to
be qualifying factors, recognised within the Human Rights Act.

In Devlin’s case, there was no evidence that he presented a security risk at
all, nor that his potential job was one that involved state security. In
effect, the UK simply did not identify any reason for defining him as a
national security risk. The severity of the exclusion from access to the Fair
Employment Tribunal was not outweighed by any other consideration.

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