UK: The Public Services Contractor - It Could Be You!

Last Updated: 18 January 2001
Article by David Kilduff

Since the introduction of the Act at the beginning of October 2000 I have come across a number of companies involved in the burgeoning public services sector that have been advised that the Human Rights Act does not affect them. Nothing could be further from the truth.

The Act requires public authorities to act in a manner giving effect to Convention rights unless primary legislation (statute law) expressly requires them to act in some other way. Public services contractors will be treated as a public authority for functions they are performing on behalf of a public authority. This will be given a wide, purposive meaning to ensure that the Act's intentions are not avoided by contracting-out services.

Any person (this includes companies as well as individuals) whose rights are breached or not respected as a consequence of the direct or indirect actions of a public authority may claim, as a victim, for redress and damages. Legal costs, however, are often the largest part of a successful claim.

But the Act is not just about responsibilities – contractors will have rights too. So how will the Act affect them? Examples include:

Selection for appointment as contractor

Responsibility

Public authorities have been urged by the Home Secretary to look at the record and capability in Human Rights of their prospective contractors. They will want to be sure that their contractors will not expose them to challenge, damages and severe political embarrassment as a result of Human Rights breaches. Questionnaires and assessment procedures will increasingly require contractors to demonstrate their understanding and capability in this area.

Rights

In the case of Tinnelly, two contractors were awarded damages for breach of their Convention rights when they were excluded from a contract award without the opportunity to properly challenge the grounds of their exclusion.

Contract terms

Responsibility

Clauses in contracts typically require contractors to comply with ‘all applicable laws’. The obligation to secure compliance will extend to subcontractors – requiring contractors to look just as closely at their appointment and terms of contract. This of course includes the Human Rights Act - to the extent that they are ‘exercising public functions’. Issues of privacy, property, treatment and possibly right to life will arise – whether these are housing maintenance and management contracts, catering, transport or other services. To address these issues staff at all levels will need training. Processes and procedures will need to be reviewed to minimise the risk of failure to comply.

Another common provision requires the contractor to supply to the public authority copies of all its records including those of all its employees and not infrequently those of its subcontractors and their employees. This will necessarily involve personal information which, unless this can be justified by the public authority on the limited grounds available under the Convention, will amount to a breach of Article 8 – the right to respect for private and family life.

The limited grounds available are that the requirement is 'in accordance with law and necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime or for the protection of health or morals or for the protection of the rights or freedoms of others'. Whilst there may also be difficulties in securing compliance with the Data Protection Act 1998, it is difficult to see how the retention of such general powers can be justified.

Rights

In order to exercise control over the standards of performance of the services or to take action in respect of corruption it is not unusual to see clauses inserted that enable the public authority to instruct the contractor to discipline or sack its employees. This can often extend to a similar requirement to sack subcontractors or instruct them to sack or discipline their staff under threat of losing their contract.

In future, contractors, subcontractors and their employees should challenge these provisions during contract negotiations or if they are applied, on the basis that their Convention rights will be infringed. The decision to sack a contractor or subcontractor without proper process will potentially give rise to claims under Article 8 (Property) and Article 6 (Fair Hearing), so employees could also claim.

This is because, following the reasoning in the Tinnelly case, any decision to terminate contracts by the public authority (whether directly or indirectly) will require it to pay proper regard to the Convention in the exercise of its functions.

Individual employees may have a right of action even though they may not have sufficient service under existing employment rights law to take action against his or her employer.

Inevitably the true picture is even more complex than this snapshot. Failing to understand and address the rights and responsibilities of your organisation and those that work in it or for it will prove costly and put your organisation at a commercial disadvantage.

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.

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