Human rights for the workplace
27 October 1998
Gavin Mansfield says it is vital that employment lawyers become familiar with the European Convention on Human Rights. Gavin Mansfield is a barrister at 4 Paper Buildings, the chambers of Lionel Swift QC.
The Human Rights Bill should receive royal assent in November, incorporating the European Convention on Human Rights and Fundamental Freedoms into English law. But many are unaware that the convention has some important applications to employment law.
The convention's incorporation effects UK law in two ways. Firstly, the convention must be used to interpret domestic law. Legislation must as far as possible be compatible with convention rights. If it cannot be construed as such, the High Court may make an incompatibility declaration. This would pave the way for a fast-track parliamentary review, enabling parliament to amend incompatible legislation.
Second, it will be unlawful for a public authority to act in a way that is incompatible with a convention right. Someone whose rights are violated by a public authority will be able to take action. Courts will have wide powers to order relief, including damages.
Outside the public sector, employees will be unable to bring claims relying directly on convention rights. But the convention should effect tribunals dealing with claims under existing law. For example, a tribunal could rule as unfair a dismissal that violates convention rights.
Decisions made by the European Court of Human Rights in Strasbourg also reveal several areas where the convention may give public sector employees important new rights.
Article 8 of the convention, the right to respect for private and family life, should be a remedy for homosexuals fighting against discrimination. Strasbourg has held that sexuality is part of private life and upheld complaints of infringement on homosexual rights. This is one area where the convention will most likely have an impact as neither domestic law nor EC law (in the wake of Grant v South West Trains) are adequate.
Article 8 could also support complaints against intrusive employer enquiries. In X v Commission (1994), the European Court of Justice, applying the convention, found that a commission job applicant's right to privacy was infringed when he was given an AIDS test without consent. Employers will need to consider how much information they need about an employee, and the manner in which they get it.
Article 10, the right to freedom of expression, and Article 9, the right to freedom of thought, conscience and religion, may be another remedy for some. For example, Strasbourg upheld the complaint of a German civil servant dismissed because of membership of a political party.
Rules on the appropriate forum for convention claims have not yet been drafted. But Lord Chancellor's Department (LCD) guidance states that all courts and tribunals will be able to hear arguments. The main forum for employment complaint will presumably be employment tribunals.
Where a complaint is upheld, a tribunal will be able to grant any remedy within its jurisdiction. Where a tribunal considers damages, there are three qualifications:
the tribunal's power will be to grant such remedy as it considers just and appropriate;
no award for damages is to be made unless the court is satisfied the award is necessary to afford just satisfaction to the complainant; and
the court must take into account principles applied by Strasbourg in awarding damages.
The Strasbourg court can award compensation for pecuniary and non-pecuniary loss, although it often finds that recognising convention violation is sufficient remedy. English courts and tribunals are likely to apply traditional concepts of compensatory damages.
The Government does not plan to implement the Act until late 1999, to allow time for judicial training. Meanwhile, advisers on both sides of industry must become familiar with the convention's concepts and interpretations.
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