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28 January 2014
When the Human Rights Act 1998 (HRA) comes into force next week, it is likely to have an impact for employers and employees in both the public and private sectors.
However, as with most other areas of practice, there is a continuing debate among employment lawyers as to precisely how far-reaching its impact will be. To help answer this question, it is important to identify the rights and freedoms conferred on individuals that are likely to be relevant in the employment arena, and the practical implications of the act upon them.
The act distinguishes between different categories of employer, and the rights created under the act will be directly enforceable against public authority employers. Section 6 provides that: "It is unlawful for a public authority to act in a way which is incompatible with a convention right." A public authority for these purposes includes the police, central and local government, prisons, and courts and tribunals.
Convention rights will also be directly enforceable against semi-public employers where they exercise functions of a public nature, but not where the nature of the act is private. There is certainly scope for argument as to which entities fall into this category of employer, although it is likely to include institutions such as the new Financial Services Authority and the BBC.
The vast majority of employers are purely private bodies, and the convention rights under the HRA will not be directly enforceable against them. Nevertheless, the act will be of significance to private employers as a result of the requirement for courts and tribunals to develop the law in accordance with the principles of the convention.
Of the rights and freedoms introduced, those most likely to be of importance in the employment law arena are: the right to a fair trial, Article 6; the right to respect for private and family life, home and correspondence, Article 8; freedom of thought, conscience and religion, Article 9; freedom of expression, Article 10; and freedom of assembly and association, Article 11.
Article 14 provides that the enjoyment of convention rights and freedoms shall be secured without discrimination on any grounds, including sex, race, colour, religion and political opinion. The article protects against discrimination in the exercise of the convention rights, rather than promotes equality. In any event, UK law already has the Sex Discrimination Act 1975 and the Race Relations Act 1976.
The potential defences available to employers under the HRA tend to relate to justifiable action by the employer in the interests of national security, public safety, the prevention of disorder or crime, the protection of health or morals and the protection of the rights and freedoms of others.
Claims brought by employees of public authorities and semi-public authorities must normally be brought within one year of the unlawful act, and the appropriate forum will be a court or employment tribunal. The European Court of Human Rights (ECHR) in Strasbourg will now only be relevant in the event that the UK courts fail to provide a remedy, or if they declare legislation to be incompatible with the convention and the Government fails to remedy the situation.
The act provides the court or tribunal with the power to award damages and, in exceptional cases, grant injunctions. Damages will be assessed so as to place the individual in the same position as if the convention right had not been disregarded.
Since Section 6 of the act defines courts and tribunals as public authorities, in an unfair dismissal claim against a private sector employer, the employment tribunal will have to take into account the case law of the ECHR in deciding whether the employer has acted fairly in dismissing the employee for the reason stated.
The various rights and freedoms are likely to cause employers to review many existing policies, practices and procedures and to reconsider how they may deal with certain situations at work. Some of the areas of concern may be less obvious than others.
The right to respect for private life may be infringed where the monitoring of employees' telephone calls and emails goes beyond acceptable means of protecting business interests, particularly where the monitoring is either secret or involves details relating to employees' private activities. Similarly, the use of CCTV in the workplace and the requirement for security checks and compulsory medical examinations may infringe this right, unless the employer is able to justify its actions by reference to one of the limitations, such as the necessity to protect the rights of others or on the grounds of health and safety. Dating policies (yes, they do still exist) may also come under scrutiny. Employers will also need to consider the information which they hold on employees. If the information could be categorised as "private", such as medical and financial records, it may be difficult to justify.
The article providing freedom of thought, conscience and religion may protect employees against being disciplined or dismissed when wishing to practise their religions. Whereas the Race Relations Act 1976 protects individuals from discrimination on grounds of colour, race, ethnicity or national origin, it does not extend such protection to religion or a set of beliefs. Religious groupings such as Rastafarians are now likely to be able to claim protection where none existed previously. However, those cases in the ECHR that have dealt with this article have taken into account the provisions of the contract of employment itself to which the employee has previously agreed (such as their agreement to work contracted hours).
The article dealing with freedom of expression may require employers to reconsider their approach to recruitment, since it may now be unlawful for public bodies to refuse to recruit or promote individuals by reference to their political views or activities. This freedom may also add to the present protection provided to "whistleblowers" under the Public Interest Disclosure Act 1998, especially since that act must now be construed in accordance with the convention. A dress code through which men and women seek to express themselves may also need to be reconsidered where the employer can not make out the justification for a particular type of dress requirement, or for the differentiation between dress requirements for men and women.
The act will be particularly relevant to public sector employees, at least initially. However, of greater long-term significance will be the impact that the act is likely to have on the relationship between employer and employees. If a particular right or freedom is interfered with, then the employer will need to be able to justify its actions accordingly.
Mark Hewland is a partner in the employment department at Simmons & Simmons.