Makbool Javaid, Partner at DVL, reviews the implications of the Human Rights
Act for UK employers
The Human Rights Act [HRA] which comes into force on 2 October 2000
incorporates the European Convention on Human Rights into UK law. Consequently
applicants will no longer need to incur the cost and delay of taking cases to
Strasbourg. They will now be able to enforce their Convention rights in UK
courts and tribunals.
The UK’s resistance to take this measure earlier had led to a large number
of applications to the Strasbourg court, a significant proportion of which were
successful. The high number of applications was fuelled by the failure, up
until recently, of the courts to take account of the Convention when
interpreting English law. The Convention is a product of the Cold War, it came
into force in 1953. For ideological reasons the Convention ignores social and
economic rights but instead concentrates on those of a civil and, or, political
nature.
There has been intense media interest regarding the Act and its implications
based largely on a fear that it will lead to an erosion of parliamentary sovereignty
and an increase in the ability of judges to make laws. This is ironic given the
fact that the Act and the Convention are ostensibly designed to curb the power
of the state. Moreover, the alarmist predictions fail to take into account the
restrictive approach taken by the Strasbourg court to employment related claims
and ignore the protection afforded by existing UK law.
The Act operates principally by placing a statutory duty on courts and
tribunals to interpret legislation in a way which gives effect to Convention
rights. The Act also provides that it will be unlawful for public authorities
to act in a way which is incompatible with Convention rights and gives an
individual who believes that a public authority has acted unlawfully and who is
a victim of that unlawful action, the right to bring proceedings before a court
or tribunal.
Therefore, it seems that the Act only impacts on public authorities. A more
comprehensive analysis reveals the following.
– If the employer is a public authority, a direct claim for breach of the
HRA can be made against it since a "standard" public authority must
act in accordance with the Convention in all its activities .
– If the employer exercises mixed public and private functions, so that it
does not readily fall into the category of a public authority, an analysis will
have to be made of the function which infringes the Act. Examples of bodies
falling into this category are the new Financial Services Authority, Railtrack,
the BBC , the privatised utilities, doctors in general practice and the Press
Complaints Commission. Thus, Railtrack is a public authority when it exercises
public functions in its role of safety regulator but acts privately in relation
to land development.
The approach to take is to ask whether but for the existence of the
non-statutory body, the Government itself would intervene to regulate the
activity in question, or whether the body is "woven into a system of
governmental control". When exercising public functions, such a body must
apply Convention rights. In relation to private functions, there is no such
obligation and it would appear that employment is viewed by the law as a
function of a private nature. Consequently, applying a functional test to
analyse the activity in question, such employers will argue that the Convention
does not apply in employment disputes involving them.
– If the employer exercises no function of a public nature then it can be
properly regarded as a private employer against which a direct claim for breach
of the HRA cannot be sustained [ie "free standing" claim which is not
linked to another claim- see below].
Horizontal effect of HRA – the non-public authority employer
It would be a mistake to assume that an employer with mixed functions or,
one that is purely a private employer can ignore the HRA. Employees can still
argue that a non HRA claim has to be considered in light of the Act so as to be
consistent with any right granted by it. This is because courts and tribunals
are obliged as public bodies to comply with the Convention when deciding cases,
including cases between private persons.
In many instances, the HRA has rights which are not just
"negative" which seek to control the state interfering with the
liberty of the individual, but which impose a positive duty on the state to
protect positive freedom. For instance, the state has to ensure that the
enjoyment of the rights is effective and prevent interference of such enjoyment
by other private persons.
Thus, the court and tribunals may themselves be in breach of the Act if they
fail to provide a remedy where there has been infringement by a third party.
The employee will need to identify an existing domestic or European claim in
respect of which the tribunal already has jurisdiction to "hang" the Convention
argument on. The Tribunal will then be required to interpret the statutory
provisions governing the action wherever possible.
More significantly, where European community law is an issue, the
fundamental rights enshrined in the Convention need to be taken into account in
the construction of EC law. This is illustrated vividly by the fact that the
European Court of Justice interpreted the Equal Treatment Directive in such a
way as to protect transsexuals from discrimination even though the directive
was clearly aimed at preventing discrimination on the grounds of sex [P v S
& Cornwall County Council] .
This decision was followed by a further remarkable interpretation of The Sex
Discrimination Act in order to afford protection to a transsexual even though
he was employed in the private sector [Chessington World Of Adventure Ltd v
Reed]. The use of the European Community standard will be unavoidable once The
Charter of Fundamental Rights for the European Union is agreed at the October
summit in France.
Public Authority Employers
A public authority employee will have a direct claim for damages or an
injunction if there is an infringement of the HRA. It is a defence for the
public authority to demonstrate that it acted in the way that it did because it
was required to do so by UK legislation. In that case the only remedy would be
to obtain a declaration of incompatibility from the Court of Appeal (unless the
claim was brought in the High Court) – the EAT will not have the power to make
such a declaration.
Interestingly, even when a declaration of incompatibility is made, the old
law still stands but it does provide the Government with a trigger to use an
accelerated procedure to bring in amending legislation. In those circumstances,
there appears to be little benefit to be gained unless the alleged breach has a
continuing effect on the employee.
Despite extensive speculation in the press, HR and legal journals about the
likely impact of the HRA, employers can be forgiven for being confused by the
diverging views. The analysis set out below therefore attempts to take a
measured position and avoids the more extravagant claims.
Internal Disciplinary/Grievance Proceedings
Article 6 guarantees the right to a fair and public hearing within a
reasonable time before an independent and impartial tribunal in the
determination of a dispute concerning a "civil right". It also
guarantees a genuine and effective access to a court for the purposes of
determining those civil rights and no derogations are permitted. It has been argued
that Article 6 applies to internal procedures, for example, disciplinary or
grievance. This cannot be right since such proceedings do not determine a civil
right. In any event the right to a fair and public hearing is satisfied by the
fact that the employee has access to the Employment Tribunal which can deal
with all aspects of the dispute.
Existing Strasbourg case law has already ruled that disputes relating to the
procedural fairness of recruitment to or termination of civil service
employment falls outside the scope of Article 6. However, where the
disciplinary proceedings relate to the right to practice a profession these
proceedings to concern civil rights. Therefore professional disciplinary bodies
and self regulatory organisation need to take account of Article 6 issues.
Many of the rights protected by article 6 are probably already covered by
the existing tribunal procedure and the concept of natural justice. However,
Article 6 may have an effect on some procedural questions relating to the way
that cases are dealt with by tribunals, i.e. over-reliance on written evidence
or refusal to transfer claims to a tribunal chosen by one of the parties
because of travelling or other difficulties.
Privacy and family life
Article 8 guarantees the right to respect for private and family life. In
relation to security measures at work, the Strasbourg authorities have accepted
a general right to privacy within the office. Any interference with
communications by staff – telephone calls and e-mail etc., will come within the
protection guaranteed by Article 8.
Interference can be justified only if it is "in accordance with the
law" and "necessary in a democratic society" for one of a number
of purposes, namely "in the interest of national security, public safety
or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health and morals or for the protection of the
rights or freedoms of others."
Consequently, any interference such as the use of CCTVs or e-mail will need
to be justified. This may not be difficult since, in the case of the former an
employer may argue that it was done to protect the rights of others (e.g. to
prevent stealing or fraud). As for the latter the argument would need to be
that it was necessary to protect the rights of fellow employees to ensure that
employees were not sending offensive e-mails which amounted to harassment.
The right to respect for private life also entails the right to keep
personal information confidential. An employer is entitled to seek personal
data and an employee has no expectation of privacy in relation to reasonable
requirements for information. However, the information required ought to be
limited to what is necessary and any intrusive questions about personal matters
may not be justified.
Furthermore, disclosure of personal information to third parties without
consent could amount to interference with the employee’s right to respect for
private life. Such disclosure may be permitted under the exceptions set out
above although it ought to be noted that particular importance is likely to be
attached to the confidentiality of medical information.
"Private Life" includes a right to respect for personal identity
including sexual identity, moral or physical integrity, sexual activities and
personal relations. In the context of the private employer this right is likely
to be invoked as an aid to interpret the unfair dismissal and sex
discrimination provisions. For example, in relation to dismissal of a gay
employee, or an employee who breaches a dating policy prohibiting relationships
at work, the employer will have to bring the defence within the exception to
the right on the basis that, for example, the rule was necessary to protect the
rights and freedoms of others.
Freedom of expression
Many have claimed that the right to freedom of expression will entitle
employees to wear whatever they like. In other words that employers will be
unable to impose standards of reasonable dress. The Strasbourg case does not
support such a proposition. Certainly, employees will need to exhibit greater
flexibility in relation to standards of dress. Most employers already exhibit
this flexibility particularly in relation to cultural and religious
requirements capable of being the subject of an indirect discrimination claim
under the Race Relations Act 1976. As for expression of views and opinions in
the workplace or even outside of working hours, the existing case law appears
to strike the right balance between the interests of employer and employee,
although an employer may have to establish that the dismissal was reasonably
"necessary" in order to justify it.
Freedom of thought, conscience and religion
Article 9 of the Convention guarantees the right to freedom of thought,
conscience and religion. Strasbourg case law has placed an extremely
restrictive interpretation of this right allowing, for instance, contractual
limitations, to curtail the right to manifest religious belief. It is unlikely
that the UK will follow the Strasbourg line of cases, in which case there is
further scope for the development of religion based rights. Currently, the
protection afforded to employees, and prospective employees, from religious discrimination
flows from the indirect discrimination provisions of the Race Relations Act
1996 [although the employee has to establish that their religion coincides with
membership of an ethnic group or that there is a greater impact on members of a
specific ethnic group].
Freedom of assembly and association
Article 11 of the Convention guarantees the right to freedom of association,
including the right to form and join a trade union. The negative right of not
being forced to join a union is also protected. Both negative and positive
rights are subject to exceptions. Once again, the Strasbourg authorities have
adopted a narrow interpretation of Article 11 and it is unlikely that it will
add anything to the protection available under existing laws.
Discrimination
Article 14 provides that the enjoyment of Convention rights must be secured
without discrimination on any grounds such as sex, race, colour, language,
political or other opinion, national or social origin, association with a
national minority, property, birth or "other status". It is important
to remember that the right does not sit independently but is linked to the
enjoyment of convention rights. For example, if an employer treats different
classes of people in different ways, that distinction of treatment could be
challenged unless it was objectively justifiable. In order to establish this an
employer will need to show that the distinction has a legitimate aim and that
any difference of treatment was proportionate.
It is unlikely that there will be any significant development in the areas
of discrimination based on race, sex or disability in light of the existing
legal framework. However, there may be room for claims to be brought
challenging differences of treatment on the grounds of religion, sexual
orientation or age, where those differences are linked to enjoyment of the
Convention right.
Conclusion
The Government has expended considerable resources in raising awareness of
human rights among the judiciary and senior civil service by undertaking an
extensive training programme. Without doubt employers in the public sector will
have to respect Convention rights and act in accordance with them. The
publicity campaigns launched by the Law Society/ Bar Council recognise the
potential for a proliferation of human rights claims. Even before the Act has
come into force we are witnessing a greater reliance on and reference to
Convention rights.
The recent ruling that conducting a Tribunal hearing in a room that the
public may not have had access to amounted to breach of the Tribunal rules [no
Convention rights were at issue – Storer v British Gas Plc] indicates that the
HRA will be taken seriously in the employment context. The real test will be to
see the extent to which tribunals have regard to Convention rights when
interpreting legislation and existing case law.
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It is this "horizontal" application of the Convention and the
stringency with which public employers are made to establish that
transgressions are justified and proportionate that will be important. If, as
it appears to be the case, the tribunals are bold in their approach then the
Convention will inform and regulate to a greater extent the employment
relationship than we have witnessed hitherto.
Employers need to engage in an audit of existing policies and procedures to
be secure in the knowledge that they are not going to be a party to the
inevitable test cases that are going to be brought. Those unfortunate employers
are going to suffer in the same way as the ones who gambled that each new
discrimination statute was going to be a damp squib and end up being held up as
examples of why the mantra of the modern employment lawyers is that prevention
is always better than the cure.
