Continuing our series of articles on the Human Rights Act 1998, we take a look at its impact on UK employment law. By Charles Wynn-Evans
One of the areas forecast to be most affected by the Human Rights Act 1998 (the Act), which comes into force on 2 October 2000, is employment law. It is important to appreciate that the Act does not create direct obligations towards employees outside the public sector. Instead, it will require tribunals to interpret existing UK employment law in line with the principles of the European Convention on Human Rights (ECHR) and its associated case law.
Privacy
Employee privacy is a key area, although the potential consequences may have been exaggerated. Article 8 of the Convention provides for the right to respect for private and family life, home and correspondence. Interference with this right is only permitted if it is “in accordance with the law” and “necessary in a democratic society” and is effected for a legitimate purpose, such as the prevention of disorder or crime, the protection of health and morals or the protection of the rights and freedom of others.
The case law under the ECHR makes it clear that employees cannot expect privacy if they are made aware that their employer reserves the right to conduct monitoring of telephone, e-mail and other communication facilities. A notable example of this principle was the case in which Liverpool assistant chief constable, Alison Halford, complained that a telephone, provided to enable her to contact her lawyer privately, had been tapped. In the absence of prior warning, this was held to be a breach of the ECHR.
The use of CCTV and other monitoring equipment may be permitted, for example for the protection of health and safety on an assembly line or to protect the rights of others by preventing theft from an employer.
A crucial point (and one in need of tribunal case law to provide employers with proper guidance) is that measures conflicting with the right to privacy can only be taken where “proportionate”, ie reasonable and justifiable in the circumstances. Indiscriminate monitoring may not be permitted.
The disclosure without consent of information relating to an employee will also breach the right to privacy, unless there is legal authority for the disclosure and it is necessary for one of the permitted purposes. Of particular importance here is confidentiality of medical information obtained by an employer .
Freedom of expression
Dress codes are another frequently-discussed area in the light of Article 10 of the ECHR, which guarantees freedom of expression. One of the leading cases on this point concerned an employee who was dismissed for insisting upon wearing a number of badges to work proclaiming that she was gay. Her unfair dismissal claim failed on the basis that the employer could decide, after sensible consideration, what was likely to offend fellow customers and employees. It is thought, given that employers can have reasonable grounds to impose sensible dress codes to operate their business, that the result of this case would probably not be different after the introduction of the Act, provided that the employer’s actions were proportionate in all the circumstances.
Fair hearing
Other, more speculative, arguments have been raised in the employment context. Article 6 of the ECHR guarantees the right to a fair and public hearing of any “civil rights” dispute within a reasonable time, before an independent and impartial tribunal. It has been argued that this requires internal disciplinary proceedings to be conducted so as to comply with the right. This argument is unlikely to succeed, quite apart from its impracticability, because an application can be made to the court or employment tribunal if a dispute over an employment-based legal right arises. At the internal disciplinary procedure stage, it is unlikely that an employee could establish that a dispute already existed concerning a civil right.
Religion
Article 9 of the ECHR provides for freedom to manifest one’s religion. However, arguments that this right entitles employees to time off for religious observance have failed before the European Court of Human Rights. Arguments based upon indirect race discrimination are more likely to succeed.
An ECHR-based argument is also unlikely to succeed in relation to a requirement to work long hours or at weekends, or in work conditions causing stress. The relevant ECHR provisions are the prohibition on forced labour, inhuman and degrading treatment and interference with private life. In view of the contractual basis of employees’ hours of work and the existing UK law protections relating to working time, harassment and discrimination, such an argument is unlikely to succeed, and, indeed, would provide less protection than current domestic law.
Conclusion
Only time will tell how much the principles of the Act will affect the approach of tribunals to their application of UK employment law. Many of the issues covered by the Act are already addressed by domestic law in some way (and, often, in more detail than the ECHR case law). Although a little scepticism will be healthy, there will undoubtedly be uncertainty while the tribunals get to grips with the new law and the expanded arguments open to employees.
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Key points |
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· The Human Rights Act 1998 will require UK employment law to be interpreted in line with ECHR principles · Although many issues addressed by the Act are already covered in detail by UK law, the Act will offer scope for new arguments |
