Originally published in Personnel Today, April 2005
Human rights issues are attracting national publicity in the run-up to the general election but they have impacted upon employment law since the European Convention on Human Rights and Fundamental Freedoms was introduced in 1950. The Human Rights Act (the "Act") incorporated Convention rights directly into English law in October 2000. In recent months, three particular human rights have impacted upon employment law, namely the right to respect for private and family life (Article 8), the right to freedom of thought, conscience and religion (Article 9) and non-discrimination (Article 14).
The Court of Appeal in X v Y ([2004] IRLR 625) considered the scope of the Convention (and the Act) when a claimant claimed that his private employer, a charity, breached his rights to respect for private and family life and non-discrimination. The claimant, who worked with young people, was dismissed when his employer learned of his caution for gross indecency. The Court held that Convention rights are not limited to relations between individuals and public authorities. The Convention imposes a positive obligation on the state to secure observance of these rights between private individuals (without creating new causes of action against private sector employers). Tribunals, as public bodies, must give effect to Convention rights, regardless of whether the employer is a public or private body.
The Court also held that what constitutes "private life" depends upon the individual circumstances, such as whether the conduct is on private premises and, if not, whether there is reasonable expectation of privacy for that conduct. Sexual orientation and private sex life fall within the scope of rights to respect for private and family life and non-discrimination.
The Employment Appeals Tribunal ("EAT") has considered the right to private life in the context of covert surveillance. In McGowan –v- Scottish Water ([2005] IRLR 167), Mr McGowan was suspected of falsifying timesheets, so the employer instigated covert surveillance outside his home (a tied house) to investigate. His dismissal (which, importantly, was held to be fair) was based upon evidence provided by that surveillance. The EAT held that, whilst the surveillance interfered with Mr McGowan’s right to private life, his right was not breached because the employer’s actions were proportionate to its aim of protecting its assets (the employer having considered other options before implementing covert surveillance) and justified and reasonable in the light of the gravity of the offence investigated.
The EAT in Copsey v WWB Devon Clays Limited (2004 WL 412973) considered the right to freedom of religion in respect of a requirement imposed by an employer (which was agreed by the unions) that employees work on Sundays. The claimant claimed his dismissal for refusing to work on Sundays breached Article 9 because he was dismissed because of his religious beliefs. However, the EAT held that the claimant was dismissed because he had refused to work when the business required him, not because of religious belief. The claimant could resign to practise his religious beliefs that were incompatible with his employer’s requirements. Further, by offering the claimant alternative employment to reduce the likelihood that he would have to work on Sundays, reasonable accommodation was made for his religious beliefs. This case was heard before legal protection against discrimination on the grounds of religion or belief was introduced.
Whilst the employer was successful in defending all three of the above claims regarding human rights breaches, employees are increasingly aware of their legal rights and are quick to ensure their rights are protected. Employers are encouraged to have regard to employees’ human rights and ensure any steps they take have minimal impact on those rights, or are justifiable and proportionate where impact cannot be avoided.
Top Tips:
1. Limit the impact on employees’ human rights wherever possible.
2. Balance business requirements against the protection of employees’ human rights.
3. Where employees’ human rights may be affected, consult with employees, and consider representations made, before taking steps that impact upon those rights.
4. If employees’ requests relating to their human rights cannot be accommodated, record the reasons for that decision to confirm that the motivation for the decision is unrelated to the employees’ human rights;
5. Ensure that that measures affecting employees’ human rights are proportionate in the circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.