Our
continuing series of quick guides to major employment legislation, puts key
information at your fingertips and brings you up to date with the latest
developments. This week Simon Loy,
employment law partner at Eversheds examines what effect the European
Convention on Human Rights has had on domestic law six months after it was incorporated
into the UK’s Human Rights Act 1998.
The Human Rights Act 1998 incorporating the European Convention on Human
Rights into domestic law has been in force for just over six months. While the
volume of claims the HRA has generated is not as extensive as predicted, there
have been developments. References to articles below are to Convention
articles.
Employment
tribunal conduct of cases
The most tangible impact of the Act so far has been on the way in which
tribunals are conducting cases. As public authorities under the HRA, tribunals must
exercise their powers compatibly with the convention. The emerging message is
that it is important for employers to consider carefully how their
representatives conduct cases – particularly where unrepresented or vulnerable
claimants bring proceedings.
Right to privacy
In one of the first reported cases, De Keyser v Wilson, 920010 EAT/1438/00,
the employer faced a constructive dismissal claim arising out of Mrs Wilson’s
allegations of bullying by her area manager. Wilson claimed the area manager’s
actions had caused her to suffer depression.
A letter of instruction to an occupational health specialist prepared by the
consultants representing the employer in the tribunal case expressed the view
that the employer found Wilson "particularly easy to disbelieve."
They went on to refer to other potential causes of stress in Wilson’s private
life, namely an unsuccessful custody battle and the alleged conviction of her
lover with whom she was said to be having an adulterous affair. Wilson’s
allegations in her tribunal claim were also described as "cynical and
vexatious".
The employment tribunal struck out the employer’s grounds of resistance on
the basis that the letter contravened Article 8 (respect for private and family
life).
Reassuringly, however, the EAT overturned this decision which it regarded as
"entirely disproportionate". Only in cases where a fair trial of the
issues was not possible should a breach of Article 8 lead to the striking out
of a party’s entire case. The correct approach for the tribunal was to consider
exercising its other powers as to ensure that matters proceeded in an orderly
fashion (that is directing that a new occupational health specialist be
instructed).
The EAT specifically confirmed that nothing in Article 8 prevented an employer
from obtaining its own medical evidence to rebut allegations of work-related
psychiatric illness. In the context of legal proceedings Article 6 (right to a
fair trial) will frequently qualify the right to respect for private life to
the extent necessary for the employer properly to prepare its defence.
Surveillance
In a personal injury claim, was considered in Rall v Hume, 2001,
TLR14/3/2001, the court indicated it would not have been prepared to admit
evidence of covert video surveillance which included filming of a claimant
through the nursery window of her private house.
Surreptitious recording of workplace conversations or grievance hearings
will also potentially be inadmissible on the same basis.
Procedural changes
The tribunal will shortly have power to strike out hopeless cases. It will
be interesting to see the extent to which tribunals can exercise those powers
given Article 6 (right to a fair trial). Some tribunals have already adopted a
standard practice of consulting both parties regarding applications for
postponement.
Internal disciplinary hearings
When HRA came into force it was anticipated that as it is the employment
tribunal and civil courts which determine civil rights (in unfair dismissal and
breach of contract claims), internal disciplinary hearings would not be
affected by Article 6. So far the employment tribunals are taking this
approach.
In Tehrani v UKCC 2001, IRLR208, the Court of Session confirmed, however,
that Article 6 would apply to a hearing before the United Kingdom Central
Council for Nursing, Midwifery and Health Visiting, the professional body for
nurses and midwives, where the right to continuing to practice a profession is
in issue. There the requirements of impartiality, independence, fairness and
access to the public would need to be satisfied.
An attempt to argue that Article 6 may apply to internal hearings that
affect a person’s reputation has recently failed in High Court proceedings.
A challenge against the expulsion of a child from a school where the child
allegedly assaulted another child failed, R v Alperton Community School ex
parte B,2001, LTL 27/3 (unreported) but is being appealed. This could be
relevant to internal disciplinary and grievance procedures relating to
misconduct and sexual harassment cases where the outcome may stigmatise the
employee.
Conclusion
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All employers need to consider the HRA. Direct claims may be brought against
public authority employers. Private employers cannot escape as the employment
tribunal has to interpret all legislation in a manner compatible with the
Convention.
It therefore remains essential for all employers to consider convention
rights whenever they take a decision and act proportionally if there is any
material risk that a convention right might be contravened. As ever, an
employer who adopts best practice here will be in the best position.
