Personnel’s preparation for the forthcoming Human Rights Act should involve
policy vigilance, not panic
The expression, "I know my rights" is likely to make any personnel
manager’s heart sink. Many are dreading the introduction of the Human Rights
Act (HRA) on 2 October this year. Much press coverage suggests it will let
loose an army of barrack room lawyers, while others are unconcerned. Who is
right?
Neither. There are traps, but only for the unprepared.
The HRA incorporates the European Convention on Human Rights into UK law.
Individuals will now be able to enforce it in the UK, whereas before they had
to go to the European Court of Human Rights in Strasbourg.
The convention, however, is concerned primarily with protecting the
individual against the state, so the HRA applies directly only to public
authorities. Many writers have dismissed the area of employment as being
largely unaffected, and this will trip up the unwary.
Law translation
First, the HRA applies directly to public-sector employers. Second, courts
and tribunals are included in the definition of "public authority".
They have an express duty to interpret UK legislation as far as possible in a
way that is compatible with the convention.
For example, the convention states, "Everyone has the right to respect
for his private and family life, his home and correspondence." Employment
tribunals may take this into account in determining the fairness of dismissals,
for instance, unauthorised absence for a family reason. Similarly, employees
may be able to claim constructive dismissal if they are video-taped at work
without their knowledge or are subjected to random drugs tests.
The convention also states, "Everyone has a right to freedom of
expression". This could affect dress codes, even sex-neutral ones.
Employers may ban nose studs but an employee could claim that this infringed
their right of free expression. Similarly, the convention right to a fair trial
could have a bearing on the fairness of disciplinary proceedings.
But the convention is not a barrack room lawyer’s charter. Many of its
provisions have very limited or no application in the employment field.
Employees may feel their job contravenes the convention right not to be
"held in slavery or servitude", but as a matter of law that is very unlikely.
Similarly, the convention prohibition on discrimination, while superficially
relevant to the employment field, is unlikely to bear much relevance because of
the way it is framed.
Some defences and derogations are provided for in the Act. For example, a
public authority may interfere with the exercise of a right if the interference
is "in accordance with the law and is necessary… for the protection of the
rights and freedoms of others." So, for example, an employment tribunal
may decide that a random drugs test policy may be necessary to protect the
health and safety of co-workers. An employer’s absence policy would have to go
further than was necessary to protect its legitimate rights that staff should
do work they are paid for before it contradicted "respect for family
life".
Employer-friendly
The European Court of Human Rights has itself taken an employer-friendly
approach to many cases. For example, in the Ahmad case, a Muslim schoolteacher
wanted to pray at his mosque for 45 minutes each Friday. The education
authority refused. He claimed the authority was infringing his right to
"freedom of religion" under the convention. The court held, in
effect, that he did not have to take up a job which required him to work on
Fridays. Legally, this is an odd decision but it did help the employer.
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So, the message for personnel departments is to be aware of the Act but do
not take too much notice of the scare stories. And be prepared for barrack room
lawyers.
By Dea Fischer, an associate at law firm Wragge & Co
