by Peter Watson
“Change is the law of life and those who look only to the past or the present are certain to miss the future”
John F. Kennedy (1917-1963)
The origins of The European Convention on Human Rights come from the desire
to protect Europe from a recurrence of the atrocities committed by the Nazis.
While such protection was the immediate objective, the Convention sought to
reach further and enshrine the ideals and values of a democratic society.
The Convention is an example that the law is not static, 50 years old it still
has a strong, continuing relevance.
The Human Rights Act 1998 made the European Convention law in the United Kingdom
and came on October 2nd 2000.
The effects are enormous. Human rights in relation to employment law will fuel
change. What I have to say is largely limited to looking at the Convention
within the context of employment. I do not propose to discuss domestic law,
which in some cases exceeds the position required by the Convention.
The key areas, which touch on Employment Law and Human Resource Management,
are as follows:
the right to privacy, personal life. and in this context we need to include sexual orientation at this stage.
collective labour rights and freedom of association
the right to a fair trial and how this affects disciplinary proceedings
the protections against discrimination
When considering Convention Rights we need to distinguish between public and private organisations. Section 6(1) of the 1998 Act states:
“It is unlawful for a public authority to act in a way which is incompatible with a convention right.”
The term “Public Authority”
has not been defined but includes Courts and Tribunals.
Although some companies are private companies and as such are excluded from
this definition it is as we will see affected indirectly. The BBC is classed
as a “public authority”
If your company were defending an action brought by an employee there is no
public authority present except the Judge, Sheriff or Tribunal. Although at
first glance there appears no public element which would open the door to Convention
Rights the employee will be able to say: “I am only looking at the Judge”.
The decision-maker, whether it is a Judge, Sheriff, or Tribunal has a duty
to develop the law as a public authority in a way that is not incompatible
with the Convention.
This provides a back door for employees of private companies to bring their Convention rights into the equation.
You must in consequence adapt current HR policy to address these issues.
I propose to look at Convention Rights within an HR context.
[Article 8]:
“That every one has the right to respect for his right to his private
and family life, his home and his correspondence and that there shall be no
interference by a public authority with the exercise of this right except [WHAT
FOLLOWS ARE A LIST OF LENGTHY QUALIFICATIONS TO THE RIGHT] as is in accordance
with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well being of the country, for the
prevention of crime and disorder or crime, for the protection of health or
morals or for the protection of the rights and freedoms of others.”
A robust stance is also adopted through the protection of the expression of
identity and sexuality. Macdonald V MOD is now going to the House of Lords.
Another work place issue is an employee’s right to work in a smoke free
environment.
Employees have an entitlement to form social relationships at work, which is
at loggerheads with any policy against office affairs.
There is the right not to have correspondence interfered with which may conflict
with existing policies on email use.
Telephone calls made from business premises are covered by the concept of “private
life”. It is also entirely probable that this includes Closed Circuit
Television as well as emails. The situation may be different if advance warning
of monitoring is given. The right is qualified and is not absolute.
It may be worthwhile in this context asking all employees to sign an acknowledgement
in relation to any policies, which relate to monitoring
The last sentence in Article 8 refers to “The protection of the rights
and freedoms of others”
and this by definition will include the employer, for example the right to:
Manage effectively
Scrutinise emails on the basis of protecting staff from offensive messages, which have the potential to constitute harassment
The right to a private life covers both residential and business premises
and covers any search, monitoring telephones, all of which must be justified.
Employers can also take advantage of this right in relation to the disclosure
of documents during proceedings in a Court or Tribunal.
There are in this context as in many areas of the Conventions competing interests:
on the one hand the right to a fair trial, and on the other, the right to privacy.
Generally, a refusal to disclose documents will only stand a chance of being
upheld where employees’
personal details are at issue.
The rights pertaining to family life only includes heterosexual relationships
but is not limited to marriage.
Current domestic law can be seen to reflect the convention as in laws, which
protect single mothers from discrimination when they are unable to fit work
and shift flexibility into caring for their children.
The European dimension also raises the possibility of men who have child
care responsibilities being able to insist on similar treatment.
Sexuality is an important area. Given that the Convention has adopted a broad
approach in relation to most matters the European Commission have decided that
homosexual relationships should not attract the protections covering the right
to family life.
However, they do qualify under the right to a private life.
This area has proved problematic for all tribunals, both domestic and international.
The UK has no legislation prohibiting discrimination on the basis of sexual
orientation.
There are three routes in analysing questions relating to sexual orientation.
Immutable status
– orientation is unchosen like sex or race.
Fundamental choice – right to choose that directly has a bearing on that
individual’s happiness.
Sex discrimination – a variant of sex discrimination like sexual harassment
or pregnancy discrimination. This whole question remains unsettled until the
Macdonald case or others reach a final decision. A wise employer however would
in my view have policies and practice in place, which protect against such
cases.
Article 11 states:
“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests”
This is not an absolute right and is subject:
“Where it is necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of rights and freedoms of others”
Article 11 guarantees individuals the freedom of assembly and association
including the right to form and join trade unions for the protection of their
interests. Article 11 does not deal with rights for unions themselves only
for their members. A union cannot use Article 11 to compel an employer to bargain
with it collectively. The flip side is that a union indirectly has the right
to represent its members for the protection of their interests.
Under Convention Rights a union has the right to be heard but there being no
right to insist on collective agreements.
One Article 11 infringement could arise where an employer, who is not compelled
to recognise a trade union, for example, that the ballot produces an insufficient
majority, does not allow their employees the right to be represented by a trade
union.
Article 11 does not require an employer to enter a collective agreement. It
does appear to require recognition of the union as a representative of employees.
The Employment Relations Act 1999, allows an employee to be accompanied by
a trade union officer in disciplinary and grievance hearings.
That while there is a difference between entering a collective agreement (which
the Convention does not require) and requiring that employers permit employee’s
representation through their trade union.
Article 6 guarantees a fair trial and includes the following:
The right to an independent and impartial tribunal.
The right to disclosure.
The right to an adversarial hearing.
The right to receive reasons; and
The right to have decisions made within a reasonable time
However, it is worth noting that, negotiations through ACAS would not fall
within Article 6. Article 6 does not apply to private negotiations to solve
a dispute before it goes to arbitration.
Convention rights may be waived by agreement. - This provides employers with
flexibility if particular problems arise.
“Injustice anywhere is a threat to justice everywhere”
Martin Luther King
Letter from Birmingham Jail on 16th April 1963
Article 14 sets out,
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status [THIS INCLUDES, AMONG OTHER THINGS; SEXUAL ORIENTATION, MARITAL STATUS, “ILLEGITIMACY”, STATUS AS A TRADE UNION, MILITARY STATUS AND CONSCIENTIOUS OBJECTION]”.
However, what is involved here is more than a simple decision whether a person
has been discriminated against in the enjoyment of a Convention right and if
so whether he or she comes within one of the listed categories which includes “other
status”
I propose to deal with this topic in three parts; firstly, sex discrimination,
racial discrimination and, thirdly, disability discrimination. Our domestic
law seeks to achieve compatibility with Convention Rights. In summary the position
is as follows.
In essence domestic law on this subject can be summarised as follows. The Sex Discrimination Act 1975 prohibits discrimination on grounds of sex and marital status. There are three types of discrimination which are against the law:
Direct Discrimination
Indirect Discrimination
Discrimination by Victimisation
The latter is present when an individual suffers detrimental treatment after
that person has threatened to bring, or has indeed brought, or been involved
in the bringing of proceedings under the Sex Discrimination Act 1975 or the
Equal pay Act 1970.
Discrimination can manifest itself as either direct or indirect discrimination.
An individual has to prove less favourable treatment and that the treatment
only occurred because of that individual’s sex which must be an important
or substantial reason in the particular case.
Additionally the individual must show that the treatment of an individual of
the opposite sex and at a similar level would have been different to that received
by the individual in question. The only exception for the requirement of a
comparator is in relation to discrimination that has occurred as a result of
pregnancy.
In relation to indirect discrimination the individual must show the existence
of a practice or policy that has a disparate adverse impact on a particular
class or group and is thus discriminatory.
The essential concepts of direct discrimination, indirect discrimination
and victimisation are similar for racial discrimination and sex discrimination.
Additionally, however, it is unlawful to segregate anyone on racial grounds.
In short our domestic legislation requires an individual to prove that the
less favourable treatment occurred on racial grounds.
The Disability Discrimination Act 1995 is similar in terms to the legislation
in place for both sex and racial discrimination. However, the 1995 Act does
not distinguish between direct and indirect discrimination. The scheme of the
Act focuses on a comparative basis for detecting discrimination and contains
a defence of justification, which is broad in compass. Additionally there is
a positive duty on an employer to accommodate disabled people.
Given that Courts or Tribunals are obliged to interpret domestic legislation
to ensure compatibility with the Convention their approach now must follow
that of the European Court of Rights. Namely, that in respect of Article 14
is there an objective and reasonable justification for treating different categories
of people in a different way, and whether any such differential treatment was
proportionate to the aim pursued.
As matters stand at present where a dispute lies between two private persons
or bodies, such as SMG and an employee, this would not give direct access to
the Courts on a breach of Art. 14. An employee would need to “piggyback”!
There must be another Convention right at issue to which a claim of discrimination
can be attached. But never underestimate the ingenuity of lawyers to find a
suitable vehicle!
“What we call the beginning is often the end. And to make a beginning the end is where we start from”
T. S. Eliot stated in the “Four Quartets”
The Human Rights Act 1998 will visit vast change not only to our law but how
we think of the law and relationships within the workplace. The Convention
is a living instrument which moves with the times and reflects society’s
values whatever they can be said to be at one time.
Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000
Made 2nd October 2000
Laid before Parliament 3rd October 2000
Coming into force 24th October 2000
The Secretary of State, in exercise of the powers conferred on him by sections
4(2) and 78(5) of the Regulation of Investigatory Powers Act 2000 (“the
Act”), hereby makes the following Regulations:—
1 Citation and commencement
These Regulations may be cited as the Telecommunications (Lawful Business Practice)
(Interception of Communications) Regulations 2000 and shall come into force
on 24th October 2000.
NOTES
Initial Commencement
Specified date: 24 October 2000: see above.
2 Interpretation
In these Regulations—
(a) references to a business include references to activities of a government department, of any public authority or of any person or office holder on whom functions are conferred by or under any enactment;
(b) a reference to a communication as relevant to a business is a reference to—(i) a communication—
(aa) by means of which a transaction is entered into in the course of that business, or
(bb) which otherwise relates to that business, or
(ii) a communication which otherwise takes place in the course of the carrying on of that business;(c) “regulatory or self-regulatory practices or procedures” means practices or procedures—
(i) compliance with which is required or recommended by, under or by virtue of—
(aa) any provision of the law of a member state or other state within the European Economic Area, or
(bb) any standard or code of practice published by or on behalf of a body established in a member state or other state within the European Economic Area which includes amongst its objectives the publication of standards or codes of practice for the conduct of business, or
(ii) which are otherwise applied for the purpose of ensuring compliance with anything so required or recommended;(d) “system controller” means, in relation to a particular telecommunication system, a person with a right to control its operation or use.
These Regulations authorise certain interceptions of telecommunication communications
which would otherwise be prohibited by section 1 of the Regulation of Investigatory
Powers Act 2000. To the extent that the interceptions are also prohibited by
Article 5.1 of Directive 97/66/EC, the authorisation does not exceed that permitted
by Articles 5.2 and 14.1 of the Directive.
The interception has to be by or with the consent of a person carrying on a
business (which includes the activities of government departments, public authorities
and others exercising statutory functions) for purposes relevant to that person’s
business and using that business’s own telecommunication system.
Interceptions are authorised for—
monitoring or recording communications—
to establish the existence of facts, to ascertain compliance with regulatory or self-regulatory practices or procedures or to ascertain or demonstrate standards which are or ought to be achieved (quality control and training),
in the interests of national security (in which case only certain specified public officials may make the interception),
to prevent or detect crime,
to investigate or detect unauthorised use of telecommunication systems or,
to secure, or as an inherent part of, effective system operation;
monitoring received communications to determine whether they are business or personal communications;
monitoring communications made to anonymous telephone helplines.
Interceptions are authorised only if the controller of the telecommunications
system on which they are effected has made all reasonable efforts to inform
potential users that interceptions may be made.
The Regulations do not authorise interceptions to which the persons making
and receiving the communications have consented: they are not prohibited by
the Act.
A regulatory impact assessment is available and can be obtained from Communications
and Information Industries Directorate, Department of Trade and Industry, 151
Buckingham Palace Road, London SW1W 9SS. Copies have been placed in the libraries
of both Houses of Parliament.
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