The Human Rights Act and employment law

Employment law is no stranger to European influence. Practitioners and employment tribunals are familiar with European jurisprudence and the road to Europe is well trodden. However, in common with other areas of law, there has to date been little reference to the European Convention on Human Rights (“the Convention”) and its own extensive body of jurisprudence in UK employment law. The “tidal wave” of the Human Rights Act 1998 (“the Act”) will transform the legal landscape. Employment law and practice will be no exception.  

Devolution gave the Act a flying Scottish start. Since May 1999, as a result of the Scotland Act 1998, it has been unlawful for the Scottish Parliament and Executive to act incompatibly with the Act. This has resulted in over 800 challenges under the Act. Although most were unsuccessful, those which did succeed have had a significant impact on the Scottish legal system. As employment law is a reserved matter under the Scotland Act, the Act so far has had very little impact in this area. However, the floodgates are now open and it is anticipated that many areas of employment law and tribunal practice and procedure will be the subject of challenge under the Act.

Convention Articles Relevant to Employment law

• Article 2: Right to life
• Article 3: Prohibition of torture, and of inhuman or degrading treatment or punishment
• Article 4: Prohibition of slavery and forced labour
• Article 6: Right to a fair trial
• Article 8: Right to respect for private and family life, home and correspondence
• Article 9: Freedom of thought, conscience and religion
• Article 10: Freedom of expression
• Article 11: Right to freedom of peaceful assembly and association
• Article 12: Right to marry and found a family
• Article 14: Freedom from discrimination in respect of Convention rights

First Protocol: Right to Property (Article 1)

The extent of the impact which the Act will have on employment law will depend on how the courts and tribunals resolve three of the most burning questions which arise under the Act:

• To what extent does the Act have a “horizontal effect” and apply to actions between private parties?
• What is a “public authority”?
• What effect will be given to the doctrine of waiver?

The horizontal effect

The first question to be asked in an employment law context is whether the Act applies at all. Parliament deliberately drafted the Act so that it only applies to the acts or omissions of “public authorities”. On the face of it, employees of public authorities can instigate proceedings under the Act but other employees cannot. However, there is an obligation under Articles 1 and 13 of the Convention for Member States to “secure” Convention rights and provide effective remedies. As courts and tribunals are public authorities, they must act compatibly with Convention rights which may mean giving effect to Convention rights in litigation between private parties. Although the Act makes no reference to the question of the horizontal effect, the Lord Chancellor at the House of Lords Committee Stage stated: “it is right as a matter of principle for the courts to have a duty of acting compatibly with the Convention not only in cases involving other public authorities but also in developing the common law in deciding cases between individuals”1

The result is that where an employer is not a public authority, an employee will be barred from instigating proceedings under the Act against such an employer. However, if such an employee is able to instigate tribunal or other proceedings in respect of some other existing right (eg sex discrimination), it is likely that an employment tribunal would be obliged to give effect to any Convention rights relied upon in such proceedings.

“Public Authority”

This is defined very widely in the Act as including any person whose functions are “of a public nature” and courts and tribunals. It is clear from Parliamentary debates that there is a third category of “hybrid” public authority which performs part-public, part-private functions, such as Railtrack. The problem with this definition is that many employers are unsure as to their status under the Act. Furthermore, their status may change depending on the nature of the function being carried out. For example, where a local authority has contracted out public functions to a private company in a public/private partnership, it is likely that the private company will, in that capacity, be a public authority, as the European Court of Human Rights (“ECHR”) has observed that “the State cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals”.2 It will ultimately be for the courts and tribunals to determine the question. The only sensible advice in the meantime must be, “if in any doubt, assume that you are a public authority”.

The Home Office has issued guidance which attempts to shed some light on how to resolve the public authority question. The factors to be considered are:

• whether the body performs or operates in the public domain as an integral part of a statutory system which performs public law duties
• whether the duty performed is of public significance
• whether the rights or obligations of individuals may be affected in the performance of the duty
• whether an individual may be deprived of some legitimate expectation in performance of the duty
• whether the body is non-statutory but is established under the authority of government or local government
• whether the body is supported by statutory powers and penalties
• whether the body performs functions that the government or local government would otherwise perform
• whether the body is under a duty to act judicially in exercising what amounts to public powers.

Waiver of Rights

Certain Convention rights can be waived by agreement3. The question of waiver was considered by the High Court of Justiciary recently in Millar v PF Elgin4. In order for a waiver to be effective, it must be established in an unequivocal manner. Even where there are express words of waiver, a court or tribunal must look at the whole circumstances and particularly the question of whether the applicant clearly understood the position5.  The ECHR has also ruled that Convention rights can be deemed to have been tacitly waived by an applicant’s failure to rely upon such rights at earlier proceedings.  

The doctrine of waiver has considerable significance in the employment law context, particularly against the background of a recent survey of 350 FTSE companies which has revealed that only 18% of respondents have reviewed their employment procedures in light of the Act6. Contracts of employment, policies and procedures, confidentiality agreements, fixed term contracts and compromise agreements should all be carefully reviewed in light of the waiver doctrine.

Article 2 - Right to Life

This right has been interpreted to extend to the protection of “health and physical integrity”. Public authorities have a positive duty to protect the public from risks to their health and safety and from harmful environmental exposure. A failure on the part of an employer to ensure a safe and healthy working environment could result in a challenge.

Article 3 - Torture, inhuman and degrading treatment

Although work can sometimes seem like torture, this is not the most obvious Article to have an impact upon employment law. However, “degrading” has been widely defined to include treatment which arouses feelings of fear anguish, which is capable of humiliating or debasing a victim or drives a victim to act against his will or self conscience or which constitutes an insult to an applicant’s human dignity. Various forms of discrimination may constitute “degrading” treatment7. Other challenges have included striking off a doctor from a medical register8 and corporal punishment.

Article 4 - Prohibition of slavery and forced labour

This Article has again resulted in a surprising number of employment related claims, such as the creative argument of a pupil advocate in Belgium who claimed his rights were violated when professional rules obliged him to represent a client pro bono9,a professional footballer’s complaint about a transfer fee10 and a dentist’s complaint at having to provide fixed price work11.

Article 6 - Right to a Fair Trial

Article 6 will have a significant impact on tribunal practice and procedure and on disciplinary hearings. It applies to the determination of civil rights and obligations and to proceedings where there is a “contestation” between an individual and the state and/or between two private individuals, provided such proceedings are at a national level and are decisive of such civil rights and obligations.

As everything from the appointment of temporary sheriffs to the workings of the District Court have already been challenged under the Act, it is no doubt a matter of time before we see the first challenge to the composition of employment tribunals and the Employment Appeal Tribunal. Indeed, a comprehensive review of the operation of all tribunals was ordered by the Lord Chancellor in May of this year and the issue of tribunal impartiality has already been raised in the case of Secretary of State for Trade and Industry v Smith12 where the EAT expressed “disquiet about the appearance of a lack of impartiality of the employment tribunals when adjudicating upon claims against the Secretary of State”. In order to assess the impact of the Act, the DTI has delayed the fast track system for private arbitration by ACAS.

In terms of tribunal procedure, there are likely to be Article 6 challenges in respect of procedural time limits, particulars of originating applications, rule 1 letters,

pre-hearing reviews and telephone conference hearings on directions. The availability of legal aid for tribunal proceedings is already under challenge in the case of Gerrie v Ministry of Defence13 which is due to be heard by the EAT in December14. Although, there is no right to free legal representation under the Convention, where cases are complex a failure to provide legal aid can amount to a breach.15

Internal disciplinary proceedings may not be covered by Article 6, as it could be said that they are not decisive of civil rights and obligations and do not involve a dispute at a national level. However Article 6 does apply to professional disciplinary proceedings. ACAS negotiations will probably not fall within article 6, as it does not apply to private negotiations before a dispute goes to arbitration.

Article 8 - Right to respect for private and family life

Article 8 establishes a positive obligation on public authorities to ensure that these rights are protected. It is a qualified right which is likely to provide one of the most fertile sources of challenge.

One of the main areas of concern is the issue of employee surveillance. Many employers monitor the use of email and the Internet, yet few have a policy in place to regulate such monitoring. What is clear is that the right to privacy does extend to the office environment16 and the ECHR have interpreted any attempt to restrict Article 8 rights narrowly - “the powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only insofar as strictly necessary for safeguarding the democratic institutions”17

Surveillance is less likely to breach article 8 if the employees are made aware that it is taking place and agree to it.  This should be done by way of some form of policy document which forms part of the contract of employment. Employers must also have regard to the Regulation of Investigatory Powers Act 2000 which will make it a criminal offence, in certain situations, for an employer to intercept private communications without the consent of an employee.

Disclosure of information, protection of data, access to personal records, access to government information, collection of medical data and many other similar issues need to be reviewed in light of Article 8 and the Data Protection Act 1998, which came into force this year.

Sexuality is another area where there have already been successful challenges under Article 8, most notably the cases of Smith and Grady v UK18 and Lustig-Prean and Beckett v UK ECHR 27.9.99 which involved the sexuality of members of the armed forces. These cases were recently followed in MacDonald v Ministry of Defence where the EAT ruled that the RAF’s decision to dismiss an officer on the grounds of his homosexuality amounted to sex discrimination and breached his rights under Article 8.

Some other areas of challenge could include random searches, drug and alcohol testing, conduct outside work, compulsory medical testing, the use of private investigators, stress and harassment.

Article 9 - Freedom of thought, conscience and religion

Article 9 rights have been afforded considerable protection from interference. Where there is a conflict between competing rights, the ECHR has had strong regard for religious beliefs.19 Religion and belief have been widely construed to include druidism20, veganism21, pacifism22 and even non-belief.  Political or idealistic movements are not covered. There have been a number of challenges in respect of expression and manifestation of belief23 and time off work for religious beliefs. In Ahmad v UK24 where a muslim teacher was refused permission to attend weekly prayers there was no breach of Article 9, as the teacher had willingly accepted his contract of employment in the knowledge that it may interfere with prayers. The same approach was adopted in Steadman v UK 25 which involved a refusal to work on Sunday.

Article 10 - Freedom of expression

This Article has led to a number of employment related challenges such as Ahmed v UK26 where restrictions on local government officers in “politically restricted” posts being involved in politics did not amount to a breach. By contrast, in Defreitas v Ministry of Agriculture27 a blanket restraint on civil servants’ right to freedom of expressing political views was held to be excessive and disproportionate. Other examples include soldiers distributing satirical material in barracks (breach), the refusal to appoint a teacher who was a communist (no breach), dismissing a teacher of 10 years service for being a communist (breach) and confiscating an artist’s obscene paintings (no breach).

Dress Codes prohibiting ponytails, earrings, jeans and even kilts will have to be re-examined in light of Article 10 and it may be that the limitations on the whistleblowing protection afforded to employees under the Public Interest Disclosure Act 1998 could be open to challenge.

Article 11 - Freedom of assembly and association

This includes the negative right of freedom not to associate28 and may have implications for the right to strike and the recent trade union recognition legislation. Lawyers, too, are free to demonstrate, safe in the knowledge that in Ezelin v France29 disciplinary action taken against a lawyer who was involved in an anti judge demonstration which became violent was considered to be disproportionate and breached article 11.

Article 14 - Prohibition of discrimination

This Article does not provide for a free standing right not to be discriminated against. However, when a court or tribunal is considering any other Convention right, article 14 can be relied upon as an additional argument in support of the application.

David Leckie is a partner in the London office of Mackay Simon - david.leckie@mackay-simon.co.uk