In this month's second article on human rights, we look at the ways in which various Convention Articles may be used under the Human Rights Act in trade union and employment law.

Article 6: The right to a fair trial

The right to a fair trial in Article 6 of the ECHR is an unqualified right. The components of a fair trial will include: real and effective access to a Court or other independent tribunal, notice of the time and place of the proceedings, a real opportunity to present the case made, the opportunity to cross-examine the other side's witnesses, a reasoned decision, a right to be represented and a right to represent oneself.

In order to trigger Article 6, there must be a dispute concerning the Applicant's "civil rights and obligations". This means that there must be a genuine and serious dispute about a right and the result of the particular proceedings must be directly decisive of the right in question.

Private sector employment is plainly covered by Article 6. Public sector employment will be covered except where the duties of the job "typify the specific activities of the public service insofar as the latter is acting as a depository of the Public Authority responsible for protecting the general interests of the State or other Public Authorities".

The areas of employment and trade union law where Article 6 is likely to be important are:

  • disciplinary procedures;
  • professional disciplinary proceedings by self-regulatory organisations, such as the UKCC and financial institutions;
  • administrative pension procedures, such as ill health retirement and appeals and proceedings before the Pensions Ombudsman.

Article 8: The right to respect for private and family life

The right to respect for private and family life is qualified. The circumstances in which the right may be interfered with are the interests of national security, public safety, the economic well being of the country, the prevention of disorder or crime, or the protection of health or morals, or the protection of the rights and freedom of others.

"Privacy" includes sexual activities and sexuality. This means that discrimination on grounds of sexuality will be covered by the Human Rights Act, unless the qualification applies.

The right to respect for "family life" will be used to strengthen the enforcement of family friendly policies in the Employment Relations Act 1999 and existing discrimination laws. Article 8 is likely to be argued to defeat mobility clauses in contracts of employment and to establish part-time working rights.

The right to respect for correspondence as an element of privacy will be important and the issue of workplace surveillance will come under close scrutiny through Article 8.

The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, will cover all business-related telecommunications systems, including telephones, faxes and e-mail (both internal and external). Although the Regulations will make it unlawful to intercept "business communications" the exceptions to this general rule are extremely wide. If the individual knows of the likelihood of interception and the interception is for any of four purposes including to provide evidence so as to "establish the existence of facts" or "ascertain compliance with practices or procedures relevant to the business", the surveillance can take place. It is doubtful whether the Regulations comply with Article 10 and there may well be a Human Rights Act challenge.

Relevant principles governing workplace surveillance under the Human Rights Act are likely to include the worker's knowledge and consent to the surveillance and consultation.

  • The areas of employment and trade union law where Article 8 is likely to be important are:
  • discrimination in connection with sexual orientation;
  • dress codes (aspects of private life);
  • telephone, electronic, close circuit television surveillance;
  • electronic monitoring of workers' use of key boards;
  • enforceable new rights to privacy for employees against Public Authorities;
  • the scope of the contractual duty of trust and confidence,
  • confidentiality and interpretation of the Data Protection Act 1998 and access to medical records;
  • Unfair Dismissal (and race/sex/disability discrimination cases) must take account of privacy rights and may include disproportionate interference with privacy; and
  • possibly restricting evidence admissible against an Applicant in Tribunal proceedings such as previous sexual conduct in a sexual harassment complaint.

 

Article 9: The right to freedom of thought, conscience and religion

The right to freedom of thought, conscience and religion is a qualified right. The main issue is likely to be whether Article 9 prohibits discrimination against religious employees on the grounds of their religious observances by, for example, refusing to give time off. It will be interesting to see how UK courts view the status of contractual obligations compared with competing Article 9 rights.

Article 9 is likely to be used to seek an extension of the scope of the Race Relations Act to cover religious groups.

Article 10: Freedom of expression

Article 10 is a qualified right and is also often complicated by the existence of a competing right, such as a right to privacy. Permitted interferences with the right include the protection of health and morals and the reputation or rights of others and for preventing the disclosure of information received in confidence. The European Court of Human Rights has tended to require strong justification for the abrogation of the right and this will be of particular benefit to journalists.

Political restrictions are permitted by article 10, provided that the restrictions imposed are proportionate.

The areas of employment and trade union law where Article 10 is likely to be important are:

  • for journalists and in libel cases;
  • interpretation of the Public Interest Disclosure Act 1998;
  • dismissal or discrimination based on dress codes (see also the right to respect for private life); and
  • freedom of expression within trade unions.

Article 11: The right to freedom of assembly and association

The right to freedom of assembly and association includes the right to form and join trade unions for the protection of an interest. The Convention right is qualified, but the qualifications are restrictive, and must be prescribed by law and necessary in a democratic society, for the interests of national security and 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.

The areas of employment and trade union law where Article 11 is likely to be important are:

  • dismissal of an employee for participating in a strike (even after the changes in the Employment Relations Act 1999);
  • trade unions' ability to discipline and expel members who refuse to take part in official and lawful strike action,
  • Trade Union election procedures; and
  • Union expulsion rules

Article 14: The right not to suffer discrimination

Article 14 is not a general "equal treatment" guarantee. It states that "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, associating with a national minority, property, birth or other status". The European Convention on Human Rights contains no free-standing prohibition of discrimination. Article 14 only requires that access to other Convention rights must be equal. This means that Article 14 can only operate in conjunction with another Convention right.

However, the grounds of discrimination outlawed by Article 14 are much wider than domestic discrimination law. Article 14 might be used to interpret, for example, Part Time Worker (Prevention of Less Favourable Treatment Regulations) 2000, if "grafted onto" another right and rights for dependant's pensions to gay and lesbian partners.

Protocol 1: The right to enjoyment of property

Protocol 1 creates a right to the peaceful enjoyment of one's possessions which is a qualified right.

Protocol 1 is particularly relevant to pensions and a contributory pension scheme is likely to be a "possession" although the position with a non-contributory scheme which creates expectations contingent upon scheme rules and conditions prevailing, is less certain. In the employment context, Protocol 1 rights are likely to be grafted onto Article 14 to gain equality for non-married and same sex partners/dependant's pension rights.