The Purpose of the European Convention On Human Rights
The purpose of the Act is to incorporate into UK domestic law certain provisions of the European Convention on Human Rights made in 1950. The intent is to give the major rights and freedoms in the Convention direct effect in the public law field and possibly in the field of private rights and obligations.
A court or tribunal deciding a question in respect of a Convention right must take account of “relevant judgments, decisions, declarations and opinions made or given by the European Commission and Court of Human Rights and the Committee of Ministers of the Council of Europe” (Section 2(1) of the Human Rights Act). This means that Strasbourg jurisprudence will be influential, although not binding, on national courts.
So the Strasbourg Court’s rulings on the legitimacy of any particular infringement will have an impact on the way domestic courts will approach the question. Strasbourg judgements provide non-binding guidance on the tests of necessity and proportionality, which means that any given limitation should achieve its aim without excessive impact on the rights of the individual.
This project will focus on the impact, benefits and contributions of the Human Rights Act of 1998 in relation to employment law with a view to evaluate its positive contributions in the area of the private sector employer and employees. It will research the achievements and the change brought into the United Kingdom legislation.
Taking into consideration many legal commentaries regarding the introduction of the Human Rights Act 1998 in the area of employment law; it is to be noted that a general consensus is the Act has given much leeway to employee rights. Those employers constantly face litigation over issues not previously covered by domestic laws. The incorporation into UK laws of certain rights and freedoms as set out in the European convention of human rights has afforded employees rights to challenge issues relating to dismissal, sexual orientation, discrimination, equality and numerous others. ‘The Convention has not so far been recognised as a direct source of law by UK courts although, when interpreting ambiguous statutes, courts have sometimes had regard to Convention provisions’
The expectations from several commentators that the Act’s broad scope would significantly impact upon the disciplinary/grievance hearings, employment tribunals, trade union right and other aspects relating to employment. After nearly a decade of its introduction I propose to evaluate the impact on important employment law cases brought under the Act. The project will also raise questions about what is the status of the Human Right Act 1998 on the rights of an individual law in England and Wales.
How the relevant provisions of the convention articles do help us to understand the decisions reached by the employment tribunals or English courts with regards to the UK national lawsHow the European convention principles have been given effect in UK law and if domestic courts have applied convention principles in case lawHow human rights are protected in the UK courtsHow does the court address similar disputes involving public authority in relation to the breach of the convention articles of the Human Rights Act 1998 and those of the private individual in the private sectorTo what extent if any has the domestic human rights protection being enhanced by the Act?
2. How the HRA 1998 introduces convention rights and
relevant convention Articles which could create impact into
2.1 Statutory interpretation:
Since the HRA 1998 came into force on 2nd October 2000 claimants have been able to assert their convention rights in the United Kingdom Courts and Employment Tribunals, thus avoiding huge cost and delay of taking cases to European Courts of Human Rights in Strasbourg. The Act gives effect to the provision of the European Convention on Human Rights (ECHR). Much speculation existed about the effect that the Act would have on employment law in the UK.
‘Parliament remains free to legislate in a manner incompatible with the Convention right which become part of municipal law under the Act’.
In an attempt to discuss the impact on the individual employment law would depend on how these rights are enforced as this is dependent on whether the individual as an employee or worker who is employed or works in the public or private sector.
The public sector employees and workers can assert their convention rights by bringing direct claim against their employers in the employment tribunal and courts by virtue of Section 7 of the HRA 1998. While the private sector employees cannot assert their convention rights through this route; instead they can rely on ss. 2,3, and 6 of the Act which places a statutory duty in employment tribunal and the courts to interpret domestic legislation in a way that gives effect to convention rights, and Strasbourg jurisprudence, as section 2 of the HRA 1998 provides ‘(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgement, decision, declaration or advisory opinion of the European Court of Human Rights…’. Section 3 of the HRA1998 states that ‘so far as it is possible to do so, primary and subordinate legislation must read and given effect in a way which is compatible with the Convention rights’.
Section 6 provides:
‘(1) It is unlawful for a public body to act in a way which is incompatible with a Convention right’. Section 6(3) provides that court and tribunals are included in the definition of public authority.
2.2 The Convention Rights:
Section 1 of and Schedule 1 to, the Act set out those rights under the ECHR which are to be part of municipal law ‘Convention rights’. Section 1 (1) defines the term ‘Convention rights’ as the rights and fundamental freedoms set out in the various articles of “Convention”, which is defined in turn in section21(1) as the ECHR “as it has effect for the time being in relation to the UK”. ‘This makes it clear that the rights are those which operate in international law in relation to the UK’. The current list of rights appears enormous but for the benefit of this task I will focus on the Convention rights that have had most impact on employment law.These are:
Article 4, which prohibits forced labour
Article 6, which provides for the right to a fair trial
Article 8, protects private and family life
Article 9, which protects freedom of thought, conscience and religion
Article 10, protects freedom of expression
Article 11, which guarantees the rights to freedom of association and assembly
Article 14, provides that there shall be no discrimination in respect of the enjoyment of any Convention right.
The above rights which are relevant to employment law from the wordings of the Articles are not expressed in absolute terms and are therefore subject to certain restrictions. The Courts will employ extra measure in the process of interpreting statutes with Convention rights ensuring that a balance result is produced, that which is compatible with the rights. This is regarded as the ‘principle of proportionality’; finding a balance between the protection of the individual rights and to those that are of communal interest.
Article 8 contains both negative and positive obligations. The state is under a negative obligation not to interfere with privacy rights, but in addition Strasbourg case law has also extended Art.8 to impose a positive duty to take measures to prevent private parties from interfering with these rights: (1) X (2) Y v the Netherlands (1985)8 EHRR 235.
There are four protected interests under Article 8:
(1) private life;
Most actions have been decided under the right to respect for private life, although they may involve incidental claims to respect for home, family or correspondence.
Like Articles 9, 10 and 11 Article 8 (2) contains specific exceptions to the right guaranteed in the first paragraph. These limitations may only be justified if they are “in accordance with the law” (Artciles 9,10 & 11 require measures to be “prescribed by law”) and, in all cases, “necessary in a democratic society”. The following analysis of these qualifications will apply equally to Articles 9 10 and 11 to follow.
In Accordance with the/Prescribed by law
This means three things:
(1) there must be a specific legal rule or regime which authorises the interference;
(2) the citizen must have adequate access to the law in question (The Sunday Times v United Kingdom (1979) 2 EHRR 245);
(3) the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied Malone v United Kingdom
Necessary in a Democratic Society
Even if a measure has been taken in pursuit of one of the legitimate interests listed in the second paragraph of Articles 8, 9 10 or 11, the measure must be tested for “necessity.” The Court has held that the notion of necessity implies two things:
(1) that an interference corresponds to a pressing social need;
(2) that it is proportionate to the legitimate aim pursued.
The Doctrine of Proportionality
In order for a measure to be “necessary in a democratic society”, it must respond to a “pressing social need” The Sunday Times v United Kingdom this involves the test of proportionality. If a measure has been adopted which infringes an individual’s Convention right in some way, it will not be considered disproportionate if it is restricted in its application and effect, and is duly attended by safeguards in national law so that the individual is not subject to arbitrary treatment (MS v Sweden (1997) 3 BHRC 248). The Court held that, ‘the domestic law must afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8’
Margin of Appreciation
Depending on the aim pursued, the Court grants Signatory States a certain leeway in adopting the measures it considers most appropriate to pursue that aim. In the area of public morals, for example, State authorities have been considered to be in a better position than the Court itself to determine for instance the restrictions on the sale of pornography Handyside v United Kingdom.or the legal recognition of transsexuals Rees v United Kingdom.
The private individual has no direct obligation under the Convention rights however s 3 of the HRA 1998 requires that, ‘so far as it is possible to do so, primary and subordinate legislation must read and given effect in a way which is compatible with the Convention rights’. This inference is that the courts or tribunals must read and give effect to legislation in a way which is compatible with such rights taking into account Strasbourg jurisprudence. The Act does not create any ‘free –standing’ rights for employees there must be in existence the right which has to be interpreted in line with the Convention rights.
The Court of Appeal has consistently reiterated that the Human Rights Act remains relevant to decisions taken by employment tribunals considering for instance in a claim of unfair dismissal made against a private employer recommended the following five point approach which might aid tribunals in other unfair dismissal cases between private individuals relating to Convention rights issues. The five point approach suggested in the case of X v Y  EWCA Civ 662
is as follows:
(1) Do the circumstances of the dismissal fall within the ambit of one or more of the Arts of the Convention?
(2) If so, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons?
(3) If it does, is the interference with the employee’s Convention right by dismissal justifiedIf it is, proceed to (5) below.
(4) If it is not, was there a permissible reason for the dismissal under the Employment Rights Act 1996 (ERA), which does not involve unjustified interference with a Convention rightIf there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.
(5) If there was, is the dismissal fair, tested by the provisions
of s98 of the ERA, reading and giving effect to them under s3
of the HRA so as to be compatible with the Convention right?
Considering the case of private employers section 3 appears more appropriate than section 6 of the HRA 1998 which explicitly applies merely to cases relating to public authority.
The requirement under section 3 of the HRA implies that the courts and employment tribunal, so far as it is possible to do so, be obliged to read and give effect to section 98 of the Employment Rights Act 1996 and other related provisions in the ERA in a way which is compatible with the Convention rights. The requisite of section 3 of the HRA applies to both primary legislation and secondary legislation; the ERA and the rules of procedure in the Employment Tribunal Regulations 2001. The ERA applies to all matters relating to employment rights disputes that exist between private sector employer and employee, unfair dismissal claims between public sector employer and employees. Invoking Section 98 of the ERA draws no distinction between an employer in the private sector and a public authority employer. In line with his leading judgement, Mummery LJ said, ‘in the case of such a basic employment right there would normally be no sensible grounds for treating public and private employees differently in respect of unfair dismissal, especially in these times of widespread contracting out by public authorities to private contractors…’
Under Section 3 of the HRA it is the tribunal’s or Court duty to interpret S.98 (4) in a way compatible with Convention rights as was determined in the case of X v Y .
An analysis of case law alleging breaches of convention rights and incompatibility of UK legislation.
The vast majority of employment cases to date have related to Article 6, the right to fair trial, Article 8, the right to respect for private and family life, Article 4, prohibition of slavery and forced labour, Article 9, the right to freedom of thought, conscience and religion, Article 10, the right to freedom of expression, Article 11, the right to freedom of association and assembly. Below I will attempt to set out the main cases brought under these Convention Articles.
Article 8- the right to private and family life in Art8 (1) is subject to a number of restrictions in Art (2) restrictions which have in many cases proved deficient in the ability of claimants to bring successful claims under this Article. The tribunals and courts are required to regard the “principle of proportionality” when considering restriction on the exercise of a Convention right; which involves finding the right balance between the protection of the individual’s right and the interest of the state at large.
In X v Y , the Court of Appeal cautiously asked whether the tribunal should have taken an employee’s right to private life under Article 8 into account when determining the fairness of his dismissal in accordance with S.98 (4) of the Employment Rights Act 1996. The employee was dismissed after his employers found out that he had earlier received a police caution over some sexual activity in the toilet which he has failed to disclose when seeking employment as required by his employers. The Court of Appeal upheld the tribunal decision that since the activity took place in public his Article 8 right to respect for private life and his right under Article 14 not to suffer discrimination had not been engaged.
In Pay v Lancashire Probation Service, A Probation officer was dismissed when his employer’s discovered his links to a business involving sadomasochistic activities. The employee sought to argue that, in accordance with S.3 of HRA, his right not to be fairly dismissed should be interpreted in the light of Articles 8 and 10. The tribunal held that the dismissal had been effected for ‘some other substantial reason’ within S.98 (1) and that his employer’s decision to dismiss him was fair for the purposes of S. 98(4). Again the tribunal concluded that the employee’s activities were conducted in public and could not be accepted as such being part of this private life. The tribunal also addressed the issue relating to Article 10 that this Convention right was not infringed and concluded that the employer’s decision to dismiss was justified under Article 10(2) which restricts the right to freedom of expression; taking into consideration that the employee’s activities would pose a risk to the reputation of the employer. The EAT while upholding the decision of the tribunal rejected the employee’s argument that the tribunal had erred in its approach by considering first the issue of fairness before considering whether Conventions rights were engaged and, if they have been breached. They argue that the consideration was injected into S.98 (4) test and that ‘interpretative obligation’ were met.
In another development regarding the claim which breaches Article 8, employers have the right to undertake random drug, or alcohol test on employees. The was challenged in the case of Whitefield v General Medical Council  a medical doctor appealed against the condition placed on his registration by the General Medical Council requiring his abstinence from alcohol and submitting to random blood and breath test. He relied on Article 8 arguing that the conditions deprived him from consuming alcohol during family and social gatherings, therefore violated his rights under Article 8. However the Privy Council rejected his claim that restriction was for public safety in the course of his employment as this would have serious consequences on his practice and that testing for safety reasons would seem proportionate. They also suggested that he can still enjoy drinking with friends and family and could opt for soft drinks instead.
In the McGowan case, the Article 8 right was considered when a public sector employee who was dismissed after his employer obtained evidence through covert surveillance of his house that proved he was falsifying records of time sheets. However the EAT accepted the covert surveillance that the employer’s action was necessary to protect its assets and also investigation a criminal activity, despite the acceptance of the fact that tracking the movements of all inhabitants abode the house ‘raises…a strong presumption that the right to have one’s private life respected is being infringed’
The issue that has arisen between the right to privacy and freedom from intrusion into one’s personal life and relationship conflict with the right to fair trial has led the courts to demonstrate where appropriate the willingness to prioritise the right to a fair trial under Article 6 over Article 8 privacy rights. This was illustrated in the case of Jones v University of Warwick an enquiry agent obtained access and information from the employee of the company he was representing by posing as a market researcher, filmed her using a hidden camera. The employee had proceeded to make a claim against her employer alleging significant disability and claimed substantial damages. The employer then introduced the video footage as evidence of the employee recovery, the Court of Appeal accepted the video footage despite admitting that this act was a violation of employee’s Article 8 rights but states that ‘the significance of the evidence weighed against the gravity of the Article 8 breach’.
In contrast to the decision in Jones, the Court of Appeal in XXX v YYYoverturned the decision of EAT who earlier admitted the evidence of a nanny who had submitted a recorded video footage in support of her claim of sex discrimination; that the employment tribunal who had seen the footage had concluded that it did not assist the employee’s case, therefore in its view was irrelevant and did not affect the balance struck between Articles 8 and 6 respectively.
The EAT, in the case of De Keyser Ltd v Wilson made a general comment on the relationship between the two convention rights (Article 8 and 6) that ‘where an individual institutes proceedings, his or her right to privacy under Article 8 (1) will be qualified by Article 8(2) so far as is necessary to protect the right of the litigating parties to a fair trial under Article 6’.
Article 6 guarantees the right to ‘fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’
An evaluation of the impact of the HRA 1998 on the law of private employer and employee.
In his April 2009 report, Professor Ruggie of the UN Secretary General’s
Special Representative on human rights and transnational corporations and other business entities, explained:
‘states are not held responsible for corporate-related human rights abuse per se, but
may be considered in breach of their obligations where they fail to take appropriate
steps to prevent it and to investigate, punish and redress it when it occurs. Within
these parameters, states have discretion as to how to fulfil their duty. The main
human right treaties generally contemplate legislative, administrative and judicial measures’
SUMMARY OF EFFECTS
(i) HRA makes it unlawful for any Authority to act incompatibly with convention rights. However if the Authority is complying with its own primary legislation it will not have acted illegally.
(ii) HRA requires all legislation to be interpreted and given effect (as far as possible) to be compatible with convention rights.
(iii) The principle of proportionality is crucial so that say an authority in trying to prevent crime adopts a policy contrary to convention rights it must still show that the action was proportioned and not excessive.
(iv) Only a victim or someone potentially at risk of being affected by a measure can bring proceedings under the HRA
The Human Rights Act 1998 may be relevant to a dispute between private parties in the following ways:
oThe horizontal effect of the Act
oThe interpretative obligation on the Court; or
oThe positive obligations placed on public authorities by the Act.
However, none of the above makes the Human Rights Act enforceable directly against private individuals or companies.