Work shy?

Since the implementation of the Human Rights Act, only seven employment disputes have involved the right to a private life – and all of them have failed. Tim Johnson reports

When the Human Rights Act 1998 (HRA) was passed, one of the expectations was that it would make a significant impact on employment law. Before the act, it was expensive and difficult for a UK citizen to enforce rights under the European Convention on Human Rights (ECHR). Despite this, there had been at least one important decision applying ECHR rights to the world of work: in Halford v UK (1997), the European Court of Human Rights held that secret tapping of phone lines was an infringement of the right to privacy. With the rights incorporated into UK law by the HRA, surely this would lead to many more employees using them?

After almost five years it has to be acknowledged that the HRA has been invoked very seldom in the employment field, and that, since it was passed, attempts to invoke human rights in the workplace have typically been unsuccessful.

Take, for example, Article 8 of the ECHR. This is the article that was seen as having most relevance in the employment context and the one relied on in Halford. Article 8 states that everyone is entitled to respect for their private and family life, their home and their correspondence. Since the act came into force, only seven cases have been reported that involve an attempt to invoke Article 8 in relation to employment – and none of them has been successful.

There are two reported cases on employee surveillance. In both, the employees had been defrauding their employers. In one, McGowan v Scottish Water (2005), the employer suspected the employee of falsifying timesheets and arranged for his house to be watched. In the other, Jones v University of Warwick (2003), an employee who was dismissed for feigning illness claimed that it was a breach of Article 8 for a private detective to gain entrance to her home by posing as a market researcher and take video pictures to show that she was not disabled. She succeeded in establishing that there had been a breach of her right to privacy, but she was unsuccessful in her attempt to prevent the video being admitted as evidence.

There have been two reported cases on Article 8 in relation to sexual activities outside work. In one, X v Y (2004), a man had been cautioned by the police for sexual activity in a public place. In the other, Pay v Lancashire Probation Service (2004), a probation officer was involved in a business supplying sado-masochistic sex toys. Both employees claimed that it was contrary to their right to privacy under Article 8 for their employer to use these activities as reasons to dismiss them. Their plea for respect for their private lives was unsuccessful, in part because the activities complained of had been carried out in public.

In another case a doctor raised his rights under Article 8 after he had been prohibited from drinking alcohol by the General Medical Council as a condition of his continued registration. The ban was imposed on public safety grounds. It was claimed that his drinking was linked to depression and that it impaired his fitness to practise. The doctor claimed that the ban prevented him drinking at family occasions and so was an infringement of his family life. The Privy Council dismissed his Article 8 claim on the grounds that there was nothing to prevent him drinking soft drinks at family celebrations.

The last two reported Article 8 cases concerned the disclosure of medical records. In Hanlon v Kirklees Metropolitan Council & ors, the employee was making a disability discrimination claim but refused to disclose his medical records on the grounds that to require him to do so would breach his right to privacy. The claim was struck out. In the other case, De Keyser Ltd v Wilson (2001), the employer argued successfully that it was not a breach of Article 8 to send medical information to an occupational health specialist to request an assessment of the employee. None of the information had been given in confidence or obtained surreptitiously.

All this is not to say that there has been no success at all in applying ECHR rights to workplace issues. In addition to Halford, in O’Flynn v Airlinks the Airport Coach Co Ltd (2002), the Employment Appeals Tribunal said that random drug testing of employees would be an infringement of Article 8 unless it could be justified on public safety grounds. However, this case, like Halford, was decided before the HRA became law and the statement was obiter.

The most notable success in applying the HRA to individual rights in the workplace has probably been Moran v RBR International Ltd (2000). In that case a tribunal found that it was a breach of the right to freedom of expression under Article 10 to prohibit women from wearing trousers to work. However, as this is an Employment Tribunal decision, it does not constitute binding precedent. It is also worth mentioning that in Jones, the case in which the detective posed as a market researcher, the Court of Appeal found that, as the video was clearly obtained in breach of the employee’s right to privacy under Article 8, the employer’s insurers should be penalised in costs for the breach of that article.

The absence of significant HRA case law in the employment field disguises one important development. When the act was passed there were doubts that it would have any impact on private sector employers. Venables & anor v News Group Newspapers Ltd (2001) established that the legislation could have a horizontal effect, provided the employee had an existing right of action against the private sector employer such as, for example, a claim for unfair dismissal or breach of contract.

So will the HRA have more impact on employment in the future? New rights in the workplace need time to take hold. Five years is not really long enough for it to be clear what impact the act will have. It took much longer for lawyers to begin to use the 1978 unfair dismissal legislation to develop the case law which underpins HR practice today. Similarly, five years after the Sex Discrimination Act 1975 or the Race Discrimination Act 1976 and it was still not clear what effect they would have on attitudes and behaviour.

The HRA could change attitudes and behaviour too. If we are to believe the newspapers, we are not alone if we feel that our work-life balance is an important issue. On the face of it, Article 8 would seem to have it covered: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

Who knows, it may not be long before a parent dismissed for refusing to work late on a child’s birthday relies on Article 8 to show that the dismissal was unfair.

Tim Johnson is an employment partner at Kilpatrick Stockton