CIPD - Human rights

Employment law

Revised April 2008

This factsheet gives introductory guidance. It:

considers human rights issues which may arise in the workplace
mentions the relationship between human rights issues and other existing laws
includes the CIPD viewpoint.

The legal position

Some rights and freedoms for all individuals are seen as being so important and fundamental that they are known under the collective term of ‘human rights’.

A number of countries including the UK have written these rights down in a special form. The European Convention on Human Rights (ECHR) is a binding international agreement that the UK helped draft. Whilst it has existed since 1950, the ECHR did not become a full part of UK law until 2 October 2000 when the Human Rights Act 1998 (HRA) came into force. This Act incorporates the rights and freedoms guaranteed by the ECHR directly into UK law, and is the main source of human rights protection in the UK.

The HRA ensures that:

it is unlawful if a public body violates ECHR rights
all UK legislation is interpreted consistently with the ECHR
UK courts or tribunals can enforce ECHR rights (instead of having to bring cases in the European Court of Human Rights in Strasbourg.)

Other important legal provisions governing human rights issues in the workplace include aspects of the legislation covering discrimination, equal pay, freedom of information, and data protection.

There have been some calls for the HRA to be repealed, and several press reports of absurdities resulting from it. In 2006, both the Labour and Conservative Parties suggested that it may be appropriate for amendments to be made. The Lord Chancellor has emphasised that any problems merely relate to its interpretation. The Department of Constitutional Affairs has:

pledged to work with staff in services like the police, to make sure the law is interpreted correctly
produced a handbook¹ which numerous examples to help explain the operation of the HRA.

A new equality body, the Equality and Human Rights Commission, began operations from October 2007. It has responsibility for race, sex, disability, religious, sexual orientation and age discrimination issues and fulfils the role of a human rights commission. It replaced the previous Equal Opportunities Commission (EOC), Commission for Racial Equality (CRE) and the Disability Rights Commission (DRC) and promotes the importance of equality for all in society, as well as working to combat discrimination affecting specific groups.

Human rights and employment

It will be relatively unusual for a major HRA issue to emerge in the workplace, as most issues which are so important and fundamental that if they arise at all, they are likely to be covered by other laws. For example, the ECHR has no direct relevance in disputes involving private sector employers and their employees (that is, an employer who is not a public authority such as the civil service) unless the private business provides services for a public authority.

A human rights issue is most likely to arise between an employer and employee if the employer is a public authority or if an existing law is applied in a way that is incompatible with the ECHR. A bill called the Human Rights Act 1998 (Meaning of Public Function) Bill introduced into Parliament in December 2007 may eventually clarify the meaning of ‘public authority’ for these purposes.

Although the HRA is important, it has had a far less significant impact on employment law than originally anticipated. This is partly attributable to the fact that there has been an increase in a variety of new anti-disrimination rights. Employees can use these rights to protect themselves rather than having to rely on allegations of an infringement of their human rights.

The ECHR is divided into a number of sections or ‘Articles’ each of which deals with a distinct area. The Articles most relevant in an employment context are:

Article 4 – prohibits forced labour
Article 6 – right to a fair trial
Article 8 – right to respect for private and family life
Article 9 – freedom of thought conscience or religion
Article 10 – freedom of expression
Article 11 - right to free assembly or association
Article 14 - freedom from discrimination.

Some of these are explored below. The majority of employment law cases have concerned Articles 6 and 8.

The right to a fair trial

Article 6 provides that where civil (and criminal) rights and obligations are to be determined, a person has a right to a 'fair and public hearing within a reasonable time by an independent and impartial tribunal established by law'. Cases involving disputes about contracts, planning decisions, property disputes, family law or employment law will fall within these provisions.

Save in certain circumstances discussed below, internal disciplinary or grievance hearings are not concerned with matters which are recognised as civil rights and obligations for this purpose, even where there has been a decision to dismiss. Accordingly, most internal disciplinary or grievance hearings will not be susceptible to scrutiny under Article 6.

However, Article 6 may well be directly applicable to those internal hearings held by professional bodies which could result in the removal of a person's professional status. This is on the basis, first, that the loss of a right to practice professionally amounts to a civil right and, second, that such bodies may be deemed to perform a public function when determining a person's right to be a member of and practice within a profession. Indeed the European Court of Justice in Konig v Germany [1979] 2 EHRR 170 found that Article 6 was directly applicable to an internal disciplinary hearing of the tribunal for the medical profession in Germany which had considered a doctor's ability to practise.

Many of the rights protected by Article 6 are probably covered by the existing court and tribunal system and the concept of natural justice, save where professional and perhaps self-regulatory bodies are concerned.

Of course, the Article 6 right to a fair trial does apply to employment tribunal cases. For example, in the case of Stansbury v Datapulse plc and another [2003] ICR 358, an employee was found not to have been given a fair trial when one of the lay members of an employment tribunal appeared to have been drunk and fell asleep during the hearing.

The right to respect for private and family life

Article 8 provides that everyone has 'the right to respect for his private and family life, his home and his correspondence'. There is a clear risk that monitoring an employee's private telephone calls or emails in the workplace could be a breach of this right. Similarly, the imposition of unreasonable mandatory dress codes or drug testing at work and the use of CCTV data may be an infringment.

For example, in the case of Halford v United Kingdom [1997] IRLR 471, ECHR, Alison Halford, a senior police officer, alleged that her employer had tapped her private work telephone. She successfully claimed that this was a breach of her rights under the ECHR. The European Court of Human Rights held that as her employer had not given her any prior warning that her telephone calls were liable to interception, she would have had a reasonable expectation of privacy for such calls. The fact that the calls were made from the workplace did not mean that her right to privacy under the Convention did not cover them.

A further potential example comes from the case of McGowan v Scottish Water [2005] IRLR 167.The employee claimed that Scottish Water had breached his rights to family life under Article 8 by covert surveillance of his house which revealed he was falsifying time sheets. However the employer succeeded in the argument that it was protecting its assets and investigating a criminal activity; its action was therefore justified, and the Article 8 claim failed.

Other legislation also governs the interception and monitoring of communications, including:

The Data Protection Act 1998
The Regulation of Investigatory Powers Act 2000
The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699).

CIPD members can find out more on this legislation from our data protection FAQ in the Employment Law at Work area of our website.

Go to our Data protection, surveillance and privacy at work FAQ

Historically, a number of Article 8 cases involved claims that a failure to employ a job applicant, or dismissing an employee, because of matters related to their sexuality or their sexual behaviour. Such cases have become less common now as a result of the increase in anti-discrimnation legislation. Some examples of Article 8 cases related to sexual behaviour still do arise but the protection only extends to sexual activity carried out in private.For example, in X vY [2004] ICR 1634, an employee was dismissed after his employer discovered that he had been cautioned by the police following sexual activity with another man in a public toilet. As the actvity had not taken place in private, the Article 8 right to a private life (and Article 14) did not apply.

A final example of the potential use of the Article 8 right to privacy in an employment context is the case of O’Flynn v Airlinks The Airport Coach Company Ltd (unreported EAT/0269/01, 15 March 2002) which concerned the drugs testing of a bus company employee. The key point to note is that random drugs testing of the blood or urine samples of an employee may invade personal privacy and breach Article 8. However such testing may be justified to the extent that the employee has responsibility for public safety in the course of their employment.

Freedom of thought, conscience or religion

Article 9 protects an individual's rights to hold religious beliefs and to manifest those beliefs in worship, teaching practice and observance. The right to manifest one's beliefs is subject to,for example, the interests of public safety, protection of public order, health or morals or the protection of the rights and freedoms of others. The right to freedom of belief under Article 9 may be relevant to areas including steps taken by employers to accommodate the beliefs and worship of their employees and imposing uniform requirements contrary to their convictions.

In most cases the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) will protect individuals from discrimination on grounds of religion or belief. However it is still possible for an employee to add weight to their claim by reference to a possible breach of their human rights, or to bring a claim relating to an aspect where they allege that the 2003 Regulations fail to protect them .

In the case of Ahmad v United Kingdom [1981] 4 EHRR which involved Article 9 before the 2003 Regulations, the HRA was used. The case involved a council worker who had resigned from his post having been refused time off to attend his mosque on Fridays. The European Commission looked at the terms of the contract and accepted that the employer was not arbitrarily disregarding the individual's freedom of religion and therefore the right to manifest his beliefs in worship could be restricted by contractual obligations. Following this decision it would appear that if the request for absence has been considered and not arbitrarily dismissed there would be no claim for discrimination or breach of human rights. An employee dismissed for refusing to work on his or her holy day will now have strong grounds for arguing now that the dismissal was unfair and potentially discriminatory under the 2003 Regulations.

Freedom of expression

Article 10 provides that everyone has the right to freedom of expression. The European Court of Human Rights has held that this may include the right of an individual to express themselves by means of the way they dress. However, an employer may be able to argue that any restriction is justified for the protection of 'the reputation or rights of others'. This will include the reputation of the business itself.

Employers should not assume this right, however, as they will have to justify any restrictions. It is likely that flexibility will be required or an employee may be found to have been unfairly dismissed by supporting his claim with reference to Article 10. There are possible claims under the Sex Discrimination Act 1975 if the dress code differentiates between men and women without justification. There are also possible claims under the Race Relations Act 1976 for indirect discrimination if the dress code is more difficult to comply with on the grounds of ethnic cultural requirements.

The right to free assembly and association

Article 11 gives individuals the right to assemble with other people in a peaceful way and the right to associate with other people including the right to form a trade union. The right to freedom of association includes the right not to join and not to be a member of such an association or other voluntary group. This means that an individual cannot be compelled to join an association or trade union as any such compulsion may infringe Article 11.

Freedom from discrimination

Article 14 provides the right to protection from discrimination in relation to all the other rights guaranteed under the ECHR. This protects individuals from discrimination on ‘any grounds’ and ‘any other status’ – this includes race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, whether you were born inside or outside a marriage, disability, marital status and age.

CIPD viewpoint

Human rights should not be seen as being simply about legal compliance. Treating people fairly is central to good people management. Employers should focus on creating a workplace culture in which everyone feels included, valued and respected. To foster personal responsibility and engagement, a balanced approach is needed to address diverse stakeholder and organisational interests and preferences. Creating a climate of mutual respect and dignity will foster improved working relationships and contribute to productivity and business performance.

Useful contacts

References

DEPARTMENT FOR CONSTITUTIONAL AFFAIRS. (2006) Human rights: human lives. A handbook for public authorities. London: DCA. Available at: http://www.dca.gov.uk/peoples-rights/human-rights/publications.htm

Human rights