The impact of the Human Rights Act on the workplace

The Human Rights Act 1998 ("the Act") came into force on 2nd October 2000. The Act enabled claims for breaches of the European Convention for the protection of human rights and fundamental freedoms ("Convention rights") to be brought in the UK rather than having to claim at the European Court of Human Rights in Strasbourg.

Almost three years on, what has been its impact, if any, upon the workplace? Direct claims for breach of Convention rights can only be brought under the Act against public sector employers, but the Act is having an indirect impact upon all employers. In accordance with their obligations under the Act, courts, including employment tribunals must interpret legislation to give effect to Convention rights. Increasingly, they may look to decide cases of unfair dismissal, discrimination or detrimental treatment with one eye on the Act. Therefore, employers, whether private or public, need to be considering whether their actions and decisions are likely to impact upon or affect a human right guaranteed by the Act.

What are human rights?

Human rights are rights which are considered to be fundamental to all. They are described as being "inherent, inalienable and universal." Human rights can be absolute (i.e exist without any exceptions or limitations) or qualified (i.e can be limited in certain circumstances). Examples of the rights provided for by the Act include:

• The prohibition of torture or inhuman or degrading treatment;
• The right to a fair trial;
• The right to respect for private and family life;
• The right to freedom of expression.

How does the Act work?

The Act imposes an obligation:-

• On all courts, including employment tribunals, to interpret legislation to give effect to Convention rights;
• On all public authorities to act compatibly with Convention rights;
• On those organisations which carry out public functions, even if strictly private organisations (i.e hybrid bodies), to act compatibly in respect of those public functions.

What are public authorities/hybrid bodies?

Public authorities - the Act does not provide an all encompassing definition of a public authority, but would include courts and tribunals and generally any organisation which carries out functions of a public nature (e.g. government departments, NHS trusts, local authorities). Public authorities can be sued directly by any person or organisation who believes their Convention rights have been infringed. Direct claims can be brought in the High Court or County Court, but not employment tribunals.

Hybrid bodies - organisations which have both public and private functions (e.g universities/colleges of further education/bodies with mixed regulatory and commercial functions such as the BBC). Hybrid bodies will be treated as public authorities in relation their public functions but not in relation to their private acts. Employment issues are usually considered as private acts and so hybrid bodies will probably not be subject to direct action in an employment context.

Private bodies - (i.e partnerships and limited companies carrying out commercial activities) cannot be sued directly for a breach of the Act, but can be indirectly affected through the courts/tribunals' obligations to act compatibly with the Convention.

Given the restriction upon direct claims under the Act, human rights issues, in an employment context, are most likely to arise as part of other proceedings, including tribunal proceedings. As tribunals seek to interpret legislation to give effect to Convention rights, they are inevitably having an indirect impact upon all employers, whether public or private. From an employment perspective, the majority of case law to date has related to the right to a fair trial and right to respect for private and family life.

Article 6 - right to a fair trial

Article 6 gives the right to a "fair and public hearing within a reasonable time by an independent and impartial tribunal established by law" in determination of civil rights and obligations. Recent cases have looked at:-

• Bias - the courts ruled that it was in breach of Article 6 to allow a part-time judge in the Employment Appeal Tribunal (EAT) to appear as Counsel before lay members of the EAT with whom he had previously sat (Lawal v Northern Spirit).
• Attendance at a hearing - the right to a fair trial requires an adjournment to a tribunal hearing where the applicant is unable to attend through no fault of his own (Teinaz v London Borough of Wandsworth).
• Delay - the time it had taken to conclude proceedings (at least seven years) amounted to a breach of Article 6 (Somjee v United Kingdom).
• Internal disciplinary hearings - whilst Article 6 does not generally apply to internal disciplinary proceedings, it may do so where the ability of an individual to practice his profession is regulated by a professional body (e.g. doctor/dentist) since this represents the determination of a civil right. (Tehrani v UKCC, R v SFA, ex parte Fleurose)

Article 8 - right to respect for private and family life

Article 8 provides for the right to respect for private and family life. But it is a qualified right so that interference with the right is permitted in specified circumstances. For example:-

• Drug/alcohol testing - A GP unsuccessfully appealed against conditions imposed on his registration by the General Medical Council, which included random alcohol testing. The court held that the conditions were not contrary to his rights under Article 8 and would have been justified on public safety grounds (Whitefield v GMC). An employee was also unsuccessful in arguing that random drug testing by her employer was an infringement of her right to respect for private life (O'Flynn v Airlinks the Airport Coach Company Ltd).
• Video Surveillance - Video footage of a claimant which had been secretly obtained was considered relevant and admissible evidence in court although the court made clear that the respondent's conduct in obtaining the video was improper and unjustified (Jones v Warwick University).
• Email - although not yet determined in the UK, the French Supreme Court ruled that an employee's right to private life under the Convention extended to private emails received at work, even where the employer had prohibited personal use of the facilities. (Onof v Nikon France)
• Public/private activity - An employee's dismissal, on account of his arrest for gross indecency outside working hours, was held to be fair and not in breach of his Article 8 rights. The EAT ruled that Article 8 would only apply to acts that could properly be described as "private" and the employee's offence had taken place in public.(X v Y)
• Gender Reassignment - It was held to be in breach of Article 8 to fail to ensure that a post-operative male to female transsexual could obtain legal recognition of their reassigned gender for employment purposes, where there was no significant factor of public interest to weigh against the interest of the individual applicant in obtaining recognition (Goodwin v UK).

Article 11 - Right of Association

Article 11 is the right to freedom of association with others. It includes the right to form and join trade unions.

• Strike action - UK legislation which limited strike action to trade disputes between existing workers and their current employer was held to be a restriction of the freedom of association under Article 11. (In this case, the industrial action related to seeking to guarantee future terms and conditions on a proposed transfer of business). However, in the particular circumstances, the restriction was found to be justified and proportionate (Unison v UK).
• Collective bargaining - By permitting employers to use financial incentives to induce employees to surrender rights to collective bargaining, UK law was found to be contrary to Article 11 (Wilson and others v UK).

This provides for every person to be entitled to peaceful enjoyment of his possessions. The courts recently rejected a claim by waiters that debit and credit card tips which were used by their employer in calculating the minimum wage interfered with the waiters' right to peaceful enjoyment of their possessions. There was found to be no breach of a Convention right. (Nerva v UK)

The future for human rights

Almost three years on, there are still many more questions than answers in relation to the Act. Some interesting issues affecting the workplace remain to be determined under human rights' legislation. For example, individuals may seek to rely upon Article 3 in support of a claim of serious harassment or bullying (Article 3 - the prohibition of torture, inhuman and degrading treatment). An individual's right to a fair trial may also lead to a challenge to the legal aid system in England and Wales which does not extend to employment tribunal complaints. In the meantime, employers should be reviewing their actions and policies to ensure they are "human rights compliant". Where there are apparent breaches of individual freedoms, employers should consider whether there is any acceptable justification. One thing is clear, this area of law is still evolving so watch this space…

© Eversheds 2003 October 2003

This briefing note is for guidance purposes only and should not be regarded as a substitute for taking legal advice.