The Human Rights Act

Employers and lawyers have been bracing themselves for the impact of the Human Rights Act 1998 on employment law. While some lawyers are waiting to see if the Act means employment tribunal compensatory limits can be abolished, there are a number of more immediate implications.

The right to respect for private and family life and private correspondence does not automatically guarantee that staff are entitled to privacy of their telephone calls, e-mails and other private communications. If employers have made it clear that such communications may be monitored then employees can have no expectation to privacy in those communications. Similarly, employees should not be able to avoid answering reasonable requests for information by arguing that it would be a breach of privacy.

Employers should not, however, ask intrusive questions about employees’ private lives if there is no justification. But staff would have an expectation that disclosure to third parties of confidential information without consent would be caught by the Act.

Although there is a guarantee to the right of freedom of expression, there are enough limitations to ensure that employers are entitled to insist that staff do not give out information about the company’s business and must maintain the confidentiality of information. Similarly, the right to freedom of expression does not entitle employees to wear what they like to work.

Neither can employees use the Act to object to working long hours. It has been pointed out that the Working Time regulations and the existing law relating to bullying and indirect discrimination provide greater security for employees than anything in the Act.

The Act guarantees the right to a fair and public hearing. Some people have argued that this applies to internal disciplinary proceedings, particularly those which may lead to a dismissal but this is probably not the case. Also, the fact that an individual may make a claim at a tribunal later on probably satisfies this obligation. But individuals with less than a year’s service may argue that their inability to claim unfair dismissal may breach the convention.

Employers can not disregard an employee’s freedom of religion but there is no entitlement to time off for religious holidays. As the right to exercise one’s religious beliefs can be limited by contractual arrangements – and can therefore be covered by a holiday policy – the Act should not spark off new claims as long as the employer has given due consideration to the issue when preparing its policies.

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Remedies

Interestingly, the Government says it has no plans to allow Human Rights Act claims to be heard in employment tribunals. Tribunals will, however, have jurisdiction to consider the human rights implications in relation to the legal issues which they are already capable of dealing with.