There has been much trumpeting of the Human Rights Act which took effect on October 2, 2000. But what will this mean for the average private business? Here we look at the real issues behind the hyperbole, giving practical pointers to employers.

Previously, claimants would have had to go to the European Court of Human Rights in Strasbourg. However, the UK government decided that it would be appropriate to incorporate the European Convention of Human Rights directly into UK law. This gives rise to a number of rights, some of which are absolute, while some are qualified and conditional.

In the past the European Court has always treated the Convention as a ‘living instrument’. It is meant to be practical and effective and the European Court has always stressed that limitations on rights should be interpreted narrowly, while taking into account national culture.

For the private sector, the principal impact will be felt in the interpretation of existing legislation. From October 2, all legislation has had to be interpreted so as to be compatible with Convention rights. If it is not possible to do so, then there is a mechanism for the courts to declare such legislation incompatible and a ‘fast-track’ procedure for the government to amend the law.

What this means in practice for the average employer is that existing legislation will be interpreted with the benefit of the incoming incorporation of Convention rights. However, some of the more extravagant claims for what this Act will do can be disregarded.

Under Section 98 of the Employment Rights Act 1996, not only must there be a proper reason for dismissal of those with over one year’s service but also there must be ‘fairness’ in the procedure. That wider sense of ‘fairness’ may be used to reinterpret previous case law to take account of rights under the Convention.

  • Long hours: First, under Article 4 of the Act, ‘enforced labour’ is prohibited. Despite claims to the contrary, it is hardly likely that doctors, for example, even if they do work long hours, will be able to rely on this, since this requires genuinely forced labour ie physical or mental constraint. Economic duress is not enough. Instead, employers should ensure they comply with their health and safety obligations and the limits imposed by the Working Time Regulations.
  • Detention and search: Article 5 of the Act provides a right to liberty. This could be used to question the fairness of detention and search procedures. However, an employment relationship is of a private nature and, essentially, this is meant to impact upon a public body’s conduct towards others. So instead, therefore, it will be a question of whether or not the courts will be prepared to challenge any fairness if a dismissal is tainted by an unreasonable detention and search. It is doubtful if this will greatly impact on existing case-law, which normally expects an employer to have a proper, express contractual power before they can take such a step towards an employee.
  • Fair proceedings: There is also a right to a fair trial under Article 6. This will be directly applicable to a public authority’s acts. But it will not apply to where there are proceedings on the basis of a private relationship between an employer and an employee – even where the employer is a public autho-rity. Accordingly, exaggerated claims about how disciplinary procedures will be affected should be treated with some scepticism. Of course, employers should still check that their disciplinary and grievance procedures ensure a fair procedure.
  • Privacy and family life: More significantly, Article 8 of the Act emphasises the right to respect for privacy and family life. This opens up more possible avenues than other rights.
  • &#8220Exaggerated claims about how disciplinary procedures will be affected by the new Human Rights Act should be treated with scepticism. Of course, employers should still check that their disciplinary and grievance procedures ensure a fair procedure”

    Essentially, there will be issues surrounding when an employer is allowed to intercept communications such as e-mails. The right to do so may become more constrained, but employers are already facing greater restrictions with the Regulation of Investigation Powers Act. That will give rights against private operators of systems if they do not have lawful authority to intercept – and lawful authority will be narrowly defined. Employers should at the very least ensure they have an express right to monitor communications.

    How far CCTV can be used may also be at issue, although this is already regulated under the Data Protection Act. There will probably be renewed emphasis on confidentiality and consent to medical enquiries, although, again, there is regulation of these under the current regime dealing with access to medical records requiring an employee’s consent, with which all employers should comply.

    Behaviour out of the work place, such as political activities, may well mean that vetting references or prohibiting appointments on that basis will no longer be tenable. Issues concerning behaviour outside the work place are not likely to enable the employer to argue that there should be a dismissal, except where it affects work performance. Under existing law if an employer sought to dismiss an individual for behaviour which was wholly unrelated to the work place, that would be unfair.

    It may well influence the courts’ views on how far employees should be permitted to enjoy the new ‘family friendly’ rights of parental leave and the right to reasonable time off. Parental and carer responsibilities will be given added weight in terms of the fairness of any refusal or agreement by an employer in response to an employee’s request to employ those rights. This will not mean a claim under the Act but, under the employment legislation, it gives the employee the benefit of a more generous interpretation of what is a ‘reasonable’ request. Employers should ensure they operate all parental leave and dependant time-off schemes consistently and fairly.

    Article 9 also gives rights to the freedom of thought, conscience and religious rights. These are qualified. However, it could give rise to competing tensions between, say, one form of discrimination and another. For example, if there is a genuinely held religious belief which conflicts with an obligation which has been incorporated as a matter of social policy, then it would be difficult to see which way the courts will decide.

    The right to freedom of expression has been used to argue about whether or not dress codes will have to be revisited. This is highly unlikely. More importantly, it may govern the interpretation of the new protection granted recently to ‘whistle blowers’ disclosing matters to the public under the Public Interest Disclosure Act, by placing a renewed focus on the fact that the reasonable belief of a whistle blower is largely subjective. So a suitably committed activist may more easily cross the first test to gain protection before encountering the other hurdles, such as whether they exhausted internal procedures.

    Article 11 allows for freedom of assembly. The question of trade union recognition is already mainly dealt with by the incoming right to compulsory trade union recognition where there is sufficient workforce support, under the Employment Relations Act 1999, which took effect on September 4, 2000.

    There is a general prohibition on discrimination but this relates only to ensuring that the rights under the Convention are enjoyed in a non-discriminatory way. There is more likely to be a shift when the draft European Directives prohibiting discrimination on the grounds of race and other criteria are bought into effect in the next few years.

    One point not to neglect is the fact that courts and tribunals are public bodies subject to the new Convention rights under the Act. Given the right of a fair trial, this may make courts more reluctant to strike out claims of doubtful merit.

    Ultimately, no doubt there will be ingenious attempts by employees’ representatives to invoke the rights arising from the Act both in and out of the court room. Employers should check whether some of the specific points above raise any particular problems. One of the most appropriate common sense approaches is to learn the lesson from the requirement of ‘fairness’ in unfair dismissal cases, and keep a lookout for how the as yet untested law develops.