Preiss v General Dental Council [2001] IRLR 696
Fogarty v United Kingdom [2002] IRLR 148
Devlin v United Kingdom [2002] IRLR 155
Albion Hotel v Maia e Silvo [2002] IRLR 200
Whittaker v P and D Watson EAT 2.7.02, Times Law Report, 26.3.02

It is fair to say that the Human Rights Act has not, so far, had a radical impact on employment law in the UK. However, claims under Article 6 of the European Convention - the right to a fair trial - are keeping the courts busy, both at home and in Strasbourg. In the UK, the cases centre on the application of Article 6 to professional disciplinary proceedings. In Strasbourg, recent cases have looked at the interplay between Article 6 and various forms of immunity from discrimination claims asserted by Government agencies. Later this year, the Court of Appeal is to rule on whether the small employer exemption in the Disability Discrimination Act 1995 breaches Article 6.

Article 6 of the Convention guarantees the right to a fair trial, within a reasonable time, before an impartial and independent Tribunal. The right is a so-called 'qualified right'.

There are circumstances in which a public authority can restrict the right to a fair trial - where the restriction on the right pursues a 'legitimate aim', is 'in accordance with the law', is 'proportionate' and is 'necessary in a democratic society'.

In disciplinary proceedings, Article 6 does not require each stage of the disciplinary process to comply with all the components of a fair trial. The procedure will comply with Article 6 if there is a right of appeal from a stage in the process which does not comply with Article 6 to a forum which does comply with Article 6, provided that the appeal forum has full and competent jurisdiction.

In Preiss v General Dental Council [2001], a dentist who had been struck off the register appealed to the Privy Council, claiming that the General Dental Council's procedures failed to comply with Article 6. Whilst finding that the procedure did technically comply with Article 6 because of the availability of a full right of appeal to the Privy Council, which could re-hear the case, the Privy Council did express concern at the apparent lack of impartiality inherent in the procedure.

The President of the GDC carried out preliminary screenings of cases and then sat on the disciplinary committee. GDC members sat on both the preliminary proceedings committee (which decided if cases should proceed) and then the disciplinary committee itself. Charges were also brought in the name of the GDC, which was also the body with responsibility for the conduct of the disciplinary procedure.

In Albion Hotel v Maia e Silvo [2002], the Employment Appeal Tribunal had to consider the somewhat esoteric point of whether or not an Employment Tribunal had been entitled to decide the case on the basis of three decisions which had not been referred to by the parties (or the Tribunal) during the hearing. The EAT said that ordinary principles of natural justice meant that it had not. Although the EAT did not refer specifically to the Human Rights Act, it is likely that it had Article 6 well in mind in reaching this conclusion. (Perhaps the EAT itself should have referred to Article 6 in reaching its decision!)

In Fogarty v United States of America, the applicant brought a complaint of sex discrimination against the US Embassy. At the Employment Tribunal, the Embassy claimed state immunity under the Immunity Act 1978. This meant that Ms Fogarty could not proceed with her tribunal claim. She complained to the European Court of Human Rights, saying that the operation of the Immunity Act prevented her from exercising her right to a fair trial.

The ECHR gave short shrift to the Government's argument that Ms Fogarty could not, in effect use Article 6 to give her a right she would not otherwise have had. Had it not been for the plea of immunity she would have had the right to pursue a discrimination claim. However, the availability of immunity was within the so-called 'margin of appreciation' conferred on States. The provisions of the Immunity Act pursued a legitimate aim, and were in accordance both with international law and the principle of proportionality. Ms Fogarty's challenge therefore failed.

Finally, in Devlin v UK, an unsuccessful applicant for the post of administrative assistant in the Northern Ireland Civil Service brought a complaint to an Employment Tribunal that he had been discriminated against on religious grounds. The Civil Service issued a certificate saying that he had been unsuccessful on grounds of national security, which meant that it had immunity from suit in a discrimination claim. Mr Devlin complained to the European Court of Human Rights that the operation of immunity deprived him of his right to a fair trial.

The ECHR found that Mr Devlin's rights under Article 6 had been infringed. Although the concept of national security could potentially be relied upon as a legitimate ground for restricting the operation of Article 6, the Government could not rely on it in Mr Devlin's case because there was no evidence of any investigation as to whether or not he would have presented a security risk.

When reviewing professional disciplinary proceedings, the availability of a full right of appeal to a forum which does comply with Article 6 is all important. If that appeal forum does comply with Article 6, and has the power to determine the proceedings in full (as opposed to a limited right of review over a the decision at an earlier stage in the stage which is not Article 6 compliant), then the right to a fair trial will have been preserved.

But the Courts, in the UK at least, seem perfectly prepared to criticise professional disciplinary procedures that lack the appearance of impartiality even if there is a right of appeal to a forum which is fully compliant with Article 6. This willingness may well be of use in negotiating changes to procedures.

In Whittaker v P and D Watson, it is being argued that Whittaker is being denied the right to a fair hearing because he cannot have a hearing for his complaint of disability discrimination as his employer is exempt from the DDA by dint of employing fewer than 15 people. The EAT have granted leave to the Court of Appeal, since the EAT is not on the list of courts able to make a declaration that the law is incompatible with the Human Rights Act.