Human Rights02 October 2000
The Human Rights Act 1998, which came into force on 2 October 2000, created new rights for UK citizens against public authorities.
Since then, all existing UK laws have had to be interpreted in line with the European Convention on Human Rights.
For trade unionists, the most important rights under the Act are:
- Article 6: The right to a fair trial
- Article 8: The right to respect for private and family life
- Article 10: The right to freedom of expression
- Article 11: The right to freedom of assembly and association
- Article 14: The right to enjoy Convention rights without discrimination
- Protocol 1, Article 1: The right to peaceful enjoyment of property.
Although Convention rights cannot be used directly against private bodies, they still have an indirect impact through the Human Rights Act because courts and tribunals have to interpret the law consistently with the Convention as far as possible.
Convention rights can only be enforced directly against public authorities, as follows:
i) "Outright" public authorities which exercise statutory or prerogative powers, such as local authorities, the police, immigration service and prisons.
ii) "Functional" public authorities which have some functions of a public nature, such as private security firms looking after both private and public property.
iii) Courts and tribunals.
Outright public authorities, courts and tribunals must act in accordance with Convention rights in relation to all their activities. Functional public authorities only have to act in accordance with them in relation to their public functions.
Types of Convention rights
There are two types of Convention rights:
- Unqualified rights include the right to a fair trial and the prohibition of discrimination. These rights are absolute, so public authorities cannot justify a breach or rely on an opt-out.
- Qualified rights include the right to respect for private and family life, the right to freedom of thought, conscience and religion, the right to freedom of assembly, and the right to protection of property.
To show that it is entitled to restrict a qualified right, a public authority has to prove that it has some basis in law; that the aim of the restriction is identified in the particular Convention right as being a "legitimate" restriction; and that it "is necessary in a democratic society".
USING THE HUMAN RIGHTS ACT
Article 6: The Right to a Fair Trial
This article is likely to be important to trade unionists in the following areas:
- Disciplinary Procedures: Not all levels of disciplinary procedures are subject to Article 6, but when a court or tribunal considers a dismissal, it must conduct a thorough review of the merits of the case.
- Professional disciplinary proceedings by self-regulatory organisations, such as the NHS and financial institutions. Factors relevant to the independence of the panel include the manner of appointment of its members, their terms of appointment, safeguards against interference and the appearance of impartiality.
- Administrative pension procedures such as ill health retirement and appeals and proceedings before the pensions ombudsman. Many pension schemes provide for ill health and early retirement. Challenges may be taken to the pensions ombudsman.
Article 8: The Right to Respect for Private and Family Life
This can be used to:
- Strengthen the enforcement of family friendly policies in the Employment Relations Act 1999 and existing discrimination laws. Article 8 has also been found to apply where a mobility clause in a contract of employment interferes with family life.
- Ensure the right to respect for correspondence. For instance, the Government breached Article 8 when it interrupted an applicant's telephone calls.
- Reduce workplace surveillance. It is unlawful to intercept business communications unless it is to protect national security, prevent or detect crime, provide "evidence" to ascertain compliance with practises or procedures relevant to the business.
- Recognise the scope of the implied contractual term of trust and confidence, including the employee's rights under Article 8 to respect for private and family life.
- Maintain confidentiality when interpreting the Data Protection Act 1998, particularly in relation to access to medical records.
- Remember that unfair dismissal law must take account of privacy rights, for example dress regulations, no-smoking rules, private conduct outside the workplace alleged to impact on working relationships such as homosexuality and mental illness, or medical conditions.
- Interpret drug and alcohol policies in line with the Information Commissioner's Code of Practice.
Article 10: Freedom of Expression
Article 10 is likely to be important to trade unionists as follows:
- For journalists and in libel cases.
- Interpretation of the Public Interest Disclosure Act 1998 (for "whistleblowers").
- Dismissal or discrimination based on dress codes.
- Freedom of expression within trade unions.
Article 11: The Right to Freedom of Assembly and Association
Article 11 is likely to be important to trade unionists as follows:
- Dismissal of an employee for participating in a strike (even after the changes in the Employment Relations Act 2004).
- Unjustifiable disciplining, and trade union election procedures.
- Union expulsion rules.
Article 14: The Right Not to Suffer Discrimination
Article 14 is not a general equal treatment guarantee. It only requires that access to other Convention rights are equal. In other words, it can only operate in conjunction with another Convention right.
Article 14 is likely to be important to trade unionists in the following areas:
- Discrimination on grounds of sexuality (largely superceded by the Employment Equality (Sexual Orientation) Regulations 2003.
- The Part Time Worker Regulations 2000 where Article 14 might be used to interpret, for example, prevention of less favourable treatment.
- Pensions may count as property for the purposes of Protocol 1. There may be an opportunity to bring claims based on breach of Article 14, particularly in relation to a failure to pay dependant's pensions to gay and lesbian partners.
Protocol 1: The Right to Enjoyment of Property
Protocol 1 is particularly relevant to pensions. Contributory schemes (which create an individual's share in the fund and therefore constitute a possession) fall within Protocol 1.
Non-contributory schemes are less likely to amount to a possession. A pension is also more likely to fall within the scope of Protocol 1 if the employee has a legal right to it, rather than a hope that a discretion will be exercised in their favour.