Employers need to take the new Human Rights Act seriously to avoid court claims and tribunals. Rob McCreath and Debra Gers of Eversheds outline the key issues
What is the Human Rights Act?
The Human Rights Act 1998 came into force on 2 October 2000. For the first time the rights provided under the European Convention for the Protection of Human Rights will be directly enforceable in the UK courts. This will mean major changes in the way the courts and tribunals approach human rights issues.
What does the Act cover?
Most of the Convention rights which are likely to be relevant in an employment context are qualified rights. In other words, justified limitations and restrictions can be imposed on them but only to the extent that is necessary, such as to protect the rights and freedoms of others.
Examples of the rights provided for by the Act include:
- The prohibition of torture or inhuman or degrading treatment, for example degrading racial abuse
- The right to a fair trial
- The right to respect for private and family life
- The right to freedom of thought, conscience and religion
- The right to freedom of expression
- The right not to be discriminated against on grounds such as sex, race, religion, and political opinion in relation to Convention rights.
How will employers be affected
The Act requires public authorities to act in compliance with the Convention. The definition of a public authority in the Act is broad. It includes the courts and tribunals and any other body which has at least some public function. Bodies which have both public and private functions will not be treated as public authorities in relation to private acts.
This means that there will be three types of body for the purposes of the Act:
- “Pure” public authorities, such as government departments, local authorities and NHS trusts
- “Hybrid” bodies including universities and colleges of further and higher education and bodies with mixed regulatory and commercial functions such as Railtrack
- Private bodies such as private-sector employers with no public functions.
How will commercial organisations be affected?
If an employee is employed solely in relation to private commercial functions, it is likely that employment-related acts by the employer will be treated as being of a private nature. For those employed in relation to mixed functions, the question is more difficult. It has been suggested that all employment-related acts by hybrid bodies are of a private nature, but this argument is by no means certain to succeed. Hybrid bodies would be well advised to proceed on the basis that all employment-related acts in relation to such employees are potentially directly covered by the Act.
Commercial organisations will be affected indirectly because courts and tribunals (as public authorities) have to act in a way compatible with Convention rights. For example, a tribunal may decide that the use of CCTV evidence in relation to a dismissal for misconduct constitutes a breach of the right to privacy, rendering an otherwise fair dismissal unfair.
What are the employment law implications?
Only when the Act is in force and cases are decided will the practical implications start to become clearer. However, certain Convention rights are likely have greater significance than others.
Article 3 – the right not to suffer degrading or inhuman treatment. This Article could be breached in instances of serious sex or race discrimination where humiliation and mental distress is caused to the individual.
Article 8 – the right to respect for private and family life, home and correspondence. This is the Article most likely to apply to employment law issues because “private life” could include sexual orientation, choice of clothes and medical information. The use of CCTV and e-mail/telephone monitoring will also be relevant.
Article 9 – freedom of religion. At present there is no provision in UK legislation to prevent discrimination on grounds of religion. Breaches could arise where an employee is not able to practice their religion as a result of working hours.
Article 10 – freedom of expression. Confidentiality clauses in contracts may result in breaches.
All the above examples may be subject to justification arguments by employers. These arguments will only be effective if the justification is genuine and the impingement on the right goes no further than is necessary to achieve the stated purpose.
Who can bring direct claims under the Act?
The claimant must be a “victim” of an act, or failure to act, of a public authority but it is important to note that “victim” does not simply mean an individual. For example, it could include a trade union.
Who can be subject to direct claims by ‘victims’?
“Pure” public authorities and hybrid bodies.
How are proceedings brought?
If a public authority or hybrid body has breached Convention rights then proceedings could be commenced in the courts directly against that body. But human rights issues will arise more often as part of other proceedings, including tribunal proceedings against public as well as private employers.
It is unlikely that there will be an immediate rush of direct claims. Nevertheless, it is inevitable that imaginative human rights arguments will arise in employment claims. Employers will need to be vigilant in monitoring developments.
What steps should be taken now?
- Review policies and procedures, particularly in relation to potentially contentious areas such as surveillance and monitoring
- Consider and document any justification arguments very carefully
- Promote a campaign in the organisation (through training and briefings) to ensure managers are fully aware of the need to consider any arguments which relate to individual freedoms very carefully. The old mantra, “Sorry, it isn’t our policy…” will not work anymore.
Rob McCreath and Debra Gers are members of the Eversheds employment team, based in London and Cardiff respectively