The Human Rights Act 1998 (the Act), which received Royal Assent on 9 November 1998, incorporated the provisions of the European Convention on Human Rights (the Convention), into UK domestic legislation. The Act is unlikely to come into force before October 2000, which will hopefully give UK employers a chance to answer the question - What does it all mean? Whilst the impact of the Act has been ‘hyped-up’ by the press, on closer examination it is clear that it will have an impact on UK employers and will certainly be a source of litigation for the future.
UK courts and tribunals will be required to interpret legislation as far as possible to comply with the Convention and will take into account judgements of the European Court of Human Rights, the European Rights Commission and the Council of Europe, to ensure that Convention rights are not breached. Initially the scope of the human rights contained in the Act seems unlimited but section 6 effectively restricts the type of employer who will be ‘caught’. Section 6 states that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. This arguably limits the type of employer affected to public bodies such as central government, courts and tribunals, the police and prison service. It will also apply to bodies which have a public and private ‘face,’ as long as the act complained of relates to the public function. Privatised public utilities are therefore likely to be covered. Private employers will not be open to a claim although it is likely, given the confusing wording of the Act, that there will be future controversy as to who falls within the scope of the legislation. A private employer is likely to be affected given that a tribunal addressing a complaint by an employee or ex employee will have to take into consideration the provisions of the Convention concerning any arguments put forward by the applicant in their case.
Only particular articles of the Convention impact on employment law for example:-
- Article 6 provides that everybody is entitled to a fair and public hearing.
- Article 8 provides that everyone has the right to respect for private and family life and correspondence.
- Article 9 protects the right to hold religious beliefs, change ones beliefs and to demonstrate such beliefs.
- Article 10 protects freedom of expression.
- Article 11 protects the right to peaceful assembly and to join and form trade unions.
- Article 14 prevents discrimination on grounds such as sex, race and religion.
Existing tribunal rules and the application of the rules of natural justice already established are likely to deal with the requirements of Article 6. However, employers should ensure that any internal grievance and disciplinary rules comply with the Convention.
Bearing in mind recent publicity in relation to telephone tapping and e-mail privacy Article 8, which has the potential to be applied broadly, is likely to impact on e.g. the ability of an employer to monitor personal e-mail and Internet activity. In the case of Halford v United Kingdom 1997, Alison Halford successfully established that her office telephone calls had been tapped and she was awarded compensation from the European Court of Human Rights on the basis that she had an ‘expectation of privacy’. In light of this, employers who wish to monitor e-mail or office telephones should clearly advise their employees in advance that this is the case to avoid any expectation of privacy. Had this been done in the Halford case her claim of a breach may have been quashed. If employees have not been warned in advance, the presumption that personal e-mail or telephone calls are private is likely to be a reasonable one to make.
Another area on which Article 8 may impact is in relation to drugs and alcohol testing. Article 8 includes a right to bodily integrity and a contract allowing an employer to breach this by requiring an employee to submit to a drugs test could be rendered unenforceable as it is contrary to the Act.
Although Article 9 which deals with the protection and demonstration of religious beliefs is unlikely to impact on issues such as Sunday trading, it could be significant in dealing with employees requesting time off to attend religious festivals, which could extend to all faiths (even those not ‘normally’ recognised) i.e. not just Christian holidays such as Easter. This may also relate to Article 14, which prevents discrimination on any ground such as sex, race, colour, language, religion, political or other opinion. Although there are already detailed sex and race discrimination laws in the UK, there is no specific legislation on religious discrimination (other than Northern Ireland). This is likely to be an area which develops and may prompt legislative changes.
With the implementation of the Act at least a year away and maybe more, employers have ample opportunity to identify potential problem areas and resolve the issues to ensure both compliance with the Convention and that the solution sits alongside the needs of their business. The effect of the Act may initially appear minimal but with the abilities of companies and organisations, not just individuals, to make claims, its impact could be potentially far reaching.
CHECKPOINTS FOR EMPLOYERS
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.
Author: Sue Nickson, Partner and Head of National Employment Unit, Hammond Suddards
First appeared in the October 1999 issue of PAY magazine.