Human Rights Act 1998

The new law does three simple things:

 It makes it unlawful for a public authority, like a government department, local authority or the police, to breach the Convention rights, unless an Act of Parliament meant it couldn’t have acted differently;
 It means that cases can be dealt with in a UK court or tribunal. Until now, anyone who felt that their rights under the Convention had been breached had to go to the European Court of Human Rights in Strasbourg;
 It says that all UK legislation must be given a meaning that fits with the Convention rights, if that’s possible. If a court says that’s not possible it will be up to Parliament to decide what to do.

It is important to remember that the Act aims to ensure that everyone’s rights are properly respected. This means that one individual’s rights will often have to be balanced against another’s. For example, the right to express your views publicly may need to balanced against another person’s right to a private life.

The Structure of the HR Act 1998

Not all the Convention rights are formulated in the same way. The different types of Convention rights are sometimes explained as:

 absolute rights such as the right to protection from torture, inhuman and degrading treatment and punishment (Article 3), the prohibition on slavery and enforced labour (Article 4) and protection from retrospective criminal penalties (Article 7)
 limited rights, such as the right to liberty (Article 5) that are limited under explicit circumstances, set out in the European Convention on Human Rights itself, which provides exceptions to the general right
 qualified rights, such as the right to respect for private and family life (Article 8), religion and belief (Article 9), freedom of expression (Article 10), assembly and association (Article 11), the right to peaceful enjoyment of property (Protocol 1, Article 1) and to some extent the right to education (Protocol 1, Article 2).

Interference with them is permissible only if what is done:

1. has its basis in law, and
2. is done to secure a permissible aim set out in the relevant Article, for example for the prevention of crime, or for the protection of public order or health, and
3. is necessary in a democratic society, which means it must fulfil a pressing social need, pursue a legitimate aim and be proportionate to the aims being pursued.

The main elements of the HR Act are:

 To encourage Parliament to introduce legislation that is compatible with the Convention;
 To place a statutory duty on courts and tribunals to interpret legislation in a manner that gives effect to the Convention;
 To make it unlawful for public authorities, and authorities with mixed private and public functions, to act in a way contrary to the Convention; and
 To give individuals whose rights have been infringed by such authorities the right to bring proceedings and obtain remedies.

Authorities with mixed private and public functions include those who undertake functions that the Government would otherwise have to provide, i.e. public transport providers, doctors in general practice, water, gas and electricity suppliers etc.

The key provisions of the Human Rights Act, and the way in which they relate to each other can be found at the end of this brief.

European Convention on Human Rights

The Human Rights Act 1998 was given effect on 02 October 2000 and is designed to give effect in the UK to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Human Rights Act includes the following Articles of the European Convention on Human Rights

Article 2 The right to life

Article 3 Protection from torture and inhuman and degrading treatment or punishment

Article 4 Protection from slavery and forced or compulsory labour

Article 5 The right to liberty and security of person

Article 6 The right to a fair trial

Article 8 The right to respect of private and family life

Article 9 Freedom of thought conscience and religion

Article 10 Freedom of expression

Article 11 Freedom of association and assembly

Article 12 The right to marry and to a family life

Article 13 The right to an effective remedy for breaches

Article 14 Freedom from discrimination

Article 15 Derogation in time of national emergency

Protocols The right to property, the right to education, the right to free and fair elections and the abolition of the death penalty in peacetime.

The Convention was adopted by the Council of Europe in 1950 and although ratified by the UK it was not until 1966 that UK citizens were granted rights of petition to the European Court of Human Rights in Strasbourg. It is only with the Human Rights Act 1998, introduced as a result of Labour’s manifesto commitment to incorporate the Convention into UK law, that UK citizens are finally able to enforce their rights in UK courts and tribunals.

Examination of the ECHR will show that many of the rights are subject to exceptions and it is important to remember that courts and tribunals will seek to achieve a degree of balance between the protection of individual rights and the interests of the community when considering Convention rights.

Employment and Human Rights

Article 4 - Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this article the term "forced or compulsory labour" shall not include:

1. any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
2. any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
3. any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
4. any work or service which forms part of normal civic obligations.

It is possible that Articles 4 and 8 could be used to protect those workers who are not yet protected by the Working Time Regulations 1998, including those who may have opted out of the 48 hour week, if it can be shown that such work has not been entered into on a voluntary basis, i.e. excessive compulsory overtime or where individuals are suffering from severe stress/ill health related to such hours.

Article 6 - Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

1. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
2. to have adequate time and facilities for the preparation of his defence;
3. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
4. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
5. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

It is unlikely that Article 6 could be reasoned to cover disciplinary and/or grievance hearings for those employees of public authorities, and authorities with mixed private and public functions, as the right to complain to an employment tribunal in relation to a dismissal in itself would be enough to meet the right to a fair and public hearing.

The duty on courts and tribunals to interpret legislation in a manner that gives effect to the Convention though has important implications for employment tribunals. Common law in the UK, i.e. law emerging from cases decided by judges, is based on the doctrine of judicial precedent and generally obliges courts, including employment tribunals, to follow previous decisions of higher courts.

To give effect to the Convention employment tribunals will have to ensure that any decisions of higher courts they decide to follow are in themselves compatible with the Convention.

Article 8 - Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such 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 disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This will limit the extent to which employers can monitor employee’s correspondence, e-mail, Internet and telephone communications at work. The European Court of Human Rights held in the case of Halford -v-United Kingdom 1997 that an employee has a reasonable expectation of privacy in the absence of any advance notification that interception might take place.

The Telecommunications (Lawful Business Practice [Interception of Communications]) Regulations 2000, effective from 24 October 2000, will detail the circumstances under which interception/monitoring is permitted and the circumstances when employee consent is necessary. Staff representatives would be well advised to discuss the introduction of clear guidelines with their employer that takes proper account of both pieces of legislation.

Private life has previously been held by the European Court of Human Rights to include sexual orientation and a recent EAT Case (MacDonald -v- Ministry of Defence EAT121/00) seems likely to protect employees from discrimination on the grounds of sexual orientation.

The EAT has decided that the Sex Discrimination Act must be interpreted to comply with the European Convention on Human Rights (ECHR) and that in order to do this that the word "sex" in the Act should be interpreted to include "on grounds of sexual orientation". The appropriate comparitor, in the view of the EAT, for a homosexual man who claimed discrimination related to sexual orientation is a heterosexual woman.

This is contrary to all existing UK and ECJ decisions but is likely to be upheld on appeal and effectively will prohibit workplace discrimination on the grounds of sexual orientation.

The right to privacy is also likely to have implications for employers in terms of obligatory medical examinations and the use of medical reports and there may very well be challenges on for instance the random drug and alcohol testing of employees in non safety related occupations.

It is also possible that Article 8 can be used to support claims for improvements in family friendly policies with employers and to assist women and men in asserting positive rights to balance work and family life. This would include for instance the right to take parental leave.

Article 10- Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The European Court of Human Rights has held that Article 10 may include the right of individuals to express themselves by way of their appearance. Staff representatives might wish to consider whether employer dress codes are applied in an objective and non discriminatory manner and whether they go beyond the minimum necessary under Clause 2 of the Article.

Article 11 - Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are 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 the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

It is expected that this will be used to challenge the rules on picketing, specifically:

 the DTI Code of Practice placing a limit of six on the numbers picketing, as being unnecessary on the grounds that similar limits are not placed on the numbers participating in other form of public protest.
 the restrictions under TULR(C)A requiring pickets to picket at or near their place of work thereby restricting secondary picketing, again as being unnecessary under the Convention.

Article 14 - Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground 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.

It is important to realise that Article 14 does not prohibit discrimination per se only in relation to other Convention rights. Redundancy selection which sought to select employees of a particular political persuasion, or those with long hair would be a breach of Articles 10 and 14, similarly selection on the basis of trade union membership and/or participation in a picketing would be contrary to Articles 11 and 14.

Conclusion

Whatever your views on the Human Rights Act, which tend to range from the oft quoted "crackpots charter" to the more realistic view that it is an enhancement of traditional values, it is an important piece of legislation.

The Act will boost the rights of TSSA members at work and it is with this in mind that you should approach the matter as a TSSA representative, seeking to persuade employers to take proper account of those rights through discussion.