The sweeping clauses of The Human Rights Act may tempt a few more people to sue their employers. But its long-term impact may be more subtle, argues Stephen Overell
If employers want to know how The Human Rights Act, which came into force yesterday (2 October), will affect them, some clues could be gleaned from organisations in Scotland.
In May last year, Scotland incorporated the bulk of the European Convention on Human Rights into the legislation on Scottish devolution. A year later, it looked at the results. In the first year of its operation 587 cases were brought. Of these, only 17 were successful.
South of the border, amid predictions of “a nightmare” from The Sun and one law firm setting up “a combat unit” to help employers battle “an avalanche” of cases, it is important to stress there are plenty of sceptics, too.
Dominic Johnson, the head of the employment relations group at the CBI, accused the legal profession of stirring up concern, dismissing it as “a lot of silliness” in the air. Rachel Dineley, partner in the employment department of Beachcroft Wansbroughs, believes there may be a considerable number of claims that use parts of the Act, but most will be “misconceived and hopeless”. The TUC thinks unions should not be getting over-excited.
Even Stonewall, the gay rights lobbying organisation, which in theory has a lot to gain from the Human Rights Act because it may grant protection from discrimination to homosexuals for the first time in British law, complains of “a lot of hot air”. “A lot of it is entirely open to interpretation. It depends where the judiciary is at on these subjects,” says spokesman Sebastian Sandys.
All this might come as some consolation to HR professionals – but only some. Many will see the Act as just another law for staff to use against them. “If an unfair dismissal claim fails then the Human Rights Act is another avenue and another piece of legislation under which to pursue a claim,” as Gillian Doughty, personnel coordinator of plastic packaging company RPC Containers, puts it.
‘Vast’ litigation potential
Barristers are often heard to say that the Act has “vast potential” for litigation. And it is easy to see what they mean. Does the obligation to wear a tie to work – or conversely not to wear a nose ring when at work – constitute a breach of freedom of expression (Article 10 of the European Convention)? Does the use of surveillance equipment constitute a breach of the right to privacy (Article 8)? Do all religious groups now have an absolute right to time off for religious observance (Article 9)?
Jews, Sikhs and Gypsies have been held by UK courts to come within the scope of the Race Relations Act 1976. Rastafarians, however, have not. Are they now protected? Is not the fact that legal aid is not granted to employers to take a case to an employment tribunal a breach of the right of access to justice (Article 6)?
But on the other hand, while there is doubtless fascinating potential for litigators, there are also strong grounds for thinking the world will be much like it was before the vague, sweeping, clauses of the Act came in.
First of all, the rights are qualified. Article 8 deals with respect for family and private life. But the right can be transgressed if “the interference is legal and needed for national security, public safety, the economy or for the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.” So an employer seeking to justify the use of CCTV or interference with e-mail would rely on the fact that while the individuals’ rights may have been breached, the breach was necessary to protect the freedom of others – that is, itself.
Second, the rights are not new. The European Convention on Human Rights was written in 1951. Britain was not only a signatory but what is sometimes forgotten is that Britain played a leading role in creating it. Sir David Maxwell Fyfe, chief British war crimes prosecutor at Nuremberg, drafted the initial document.
British people have been able to enforce Convention rights since then but they could not do so in the UK courts; if they wanted to use them they had to go to Strasbourg. What the Act does is in effect bring the rights home to Britain. The suspicion is that the geographical closeness of the rights will increase the number of people choosing to use them.
Third, there are big questions surrounding precedents. Many lawyers argue that the decisions of the European Court have been very difficult to turn into serviceable case law – for example, articles 9 and 10 of the Convention, which cover freedom of thought, conscience and religion.
In one case, a Turkish army judge was retired for holding fundamentalist religious views. The court decided he did not have his human rights breached because, on adopting a military career, he accepted limitations on his freedom. But a German teacher who was sacked for her Communist party activities, despite no criticism of her work, was held to have faced unwarranted interference in her rights.
Interpreting the law
It should be stressed that the ability of the Act to alter UK employment law is very restricted. Courts and tribunals are public bodies and so are under an obligation to interpret law in a way that is compatible with the Convention. If they cannot, UK law takes precedence. Some courts can issue something called a “declaration of incompatibility” but employment tribunals and the Employment Appeal Tribunal cannot.
Barrister Daniel Barnett says there could even be arguments over whether disputes surrounding a contract of employment are covered by the Convention at all outside the public sector. He argues that the law deems employment contracts a “function of a private nature”. Therefore, the Convention may not apply to any employment contract dispute in the private sector – including “hybrid” bodies such as Railtrack, the BBC or the New Millennium Experience Company.
The Act may lure a few more people into “having a go”, so it could affect the number of cases brought. But there appear to be strong grounds for believing a lot will fail. Employment partner at Lewis Silkin James Davies, and many other lawyers, believe its impact will not be so much on the actual law or the behaviour of employers but argues it will have a profound impact on the “culture” of employment tribunals. “Over time, it will have an effect on what tribunals see as reasonable and justified,” he says.
Scenarios: How the Human Rights Act could affect employment
Scenario A retail company has been suffering pilfering from the till and suspects a particular employee. It wants to set up CCTV cameras to gather enough evidence to dismiss.
Advice To be safe, the employer needs to let staff know it reserves the right to use CCTV – for example, a clause expressly stating this in a document such as a staff handbook. If it uses covert surveillance, that could be regarded as intrusive under the terms of the Act. If, however, the justification was existing fraud, tribunals – which are normally quite uncomfortable about covert surveillance – may regard the action as reasonable.
Scenario A senior executive claims that the excessive hours he feels forced to work compromise his rights to family life under Article 8 on respect for private and family life.
Advice This issue is muddled up not only with the Working Time laws (whether consent had been granted) but also with the implied duty on an employer to maintain trust and confidence in a relationship. If it went to a tribunal over dismissal for refusing an instruction or breach of contract, the tribunal would look at the Act in assessing what is “reasonable and proportionate”. It is on such cases as this that the Act could be “indirectly influential”.
Scenario An employee is vociferous in expounding views denying that the Holocaust took place and defending the record of the Third Reich. He claims he is passed over for promotion and claims Article 10 on freedom of expression in his support.
Advice Freedom of expression is not a blanket right and does not allow an individual to exercise it by infringing the freedom of others. The employer has a duty of care to provide a safe working environment, one that is free from offence on the basis of race.
Source: Jane Mann, chairwoman of the Employment Lawyer’s Association and head of employment at Fox Williams