The Human Rights Act (HRA) will make the fundamental rights and freedoms contained in the European Convention on Human Rights (ECHR) more accessible to individuals in the UK. So how will the Act affect the workplace?
For the public sector, the importance of the HRA is quite clear. Public sector employees, customers and clients will be able to pursue direct action to enforce their rights under this legislation. Outside the public sector however, some employers may feel that it will not be of any real relevance to their organisation. After all, they don’t torture anyone! Think again!
The courts and employment tribunals will be obliged to act in a manner compatible with the ECHR. Every employer must be aware that reference is likely to be made in any employment proceedings as to the applicability of the Convention, irrespective of whether the employee has specifically raised a right in the first place. As a consequence, employers may well find themselves paying damages for breaching the HRA in addition to damages awarded for any statutory or contractual breach.
Article 8 entitles everyone to have the right of respect for his family life. This includes the right for a person to express their sexuality. The European Court of Human Rights ruled last September in favour of four former armed services personnel who were sacked for being gay. It seems clear that the HRA will put an end to such treatment. It also seems likely that this will extend to employers who fail to protect workers from homophobic harassment or abuse.
Article 8 is also relevant to issues of surveillance and data collection. A company with a policy of recording telephone calls, monitoring e-mails or operating a CCTV system will need to be extra vigilant. Such acts could amount to a violation of this Article. Companies are advised to formulate a policy that informs everyone exactly where they stand.
Article 9 concerns individuals’ freedom of thought, conscience, and religion. This includes the freedom for people to manifest their religion or belief in worship, teaching practice and observance. Employers will have to give careful consideration if an employee wishes to take time off as a requirement for his or her religious belief.
Article 10 provides workers with the right of freedom of expression. This may extend to a prohibition or at least a limitation on the use of dress codes. Article 11 addresses the right to freedom, peaceful assembly and freedom of association. This could clearly have a significant impact upon relationships with trade unions and their members. Secondary picketing could make a return under the definition of peaceful assembly.
As there is no precedent in the UK, it is unclear exactly how the courts and tribunals will interpret the Act. One thing is for certain, the HRA is here to stay and is something that all employers must address sooner rather than later.
The information and opinions contained in this publication are provided by national law firm Hammond Suddards Edge. They should not be applied to any particular set of facts without seeking appropriate legal or other professional advice.
