Human rights and employment law
The likely impact of the Human Rights Act 1998 on employment law.
The Human Rights Act 1998 ("the HRA") gives "further effect" in UK law to rights and freedoms guaranteed under the European Convention on Human Rights ("the Convention rights") in a distinctive way (see pp.2-5). In this article, we consider the impact that the Convention rights are likely to have, through the HRA, on employment law. Some rather exaggerated claims have been made about that, but most commentators are agreed that the overall impact may be quite limited. This is because the Convention rights:
On the other hand, although British courts and tribunals must now take account of relevant case law of the ECHR and the Commission, they are not bound to follow it (see p.5). Moreover, because of the interpretative obligation in s.3(1) of the HRA, the Convention rights are likely to have a not insignificant impact on the law of unfair dismissal in particular (see p.3).
In any event, there is likely to be no shortage of cases in which "Convention points" are taken.
CONVENTION RIGHTS
Not all of the Convention rights are relevant to the workplace, and fewer still are likely to have a significant impact, through the HRA, on employment law. The material provisions of those that are relevant are reproduced in the document extract on p.8. These rights are set out in general - some might say vague - terms, and some of them are subject to a number of qualifications that are also of a general character. Only two of the rights (set out in Article 3 and part of Article 9) are "absolute". Of the rest, two more (set out in Articles 4(2) and 6(1)) are "derogable", another (set out in Article 14) has "no independent existence" and the others (set out in Articles 8, 10 and 11 and the remainder of Article 9) are "qualified".
Principles of interpretation
The general principles recognised by the ECHR and the Commission for the interpretation of the Convention, which British courts and tribunals must take into account in considering "Convention points", include the following:
Positive obligations
Article 1 of the Convention obliges the Convention's signatories to "secure to everyone within their jurisdiction" the Convention rights and the right set out in Article 13. So, for example, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the state to abstain from such interference. In addition to that primarily negative obligation, "there may be positive obligations inherent in an effective respect for private or family life". These obligations "may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves". The nature of the state's obligation "will depend on the particular aspect of private life that is at issue" (X and Y v Netherlands).
Similarly, "effective freedom of peaceful assembly cannot ... be reduced to a mere duty on the part of the state not to interfere". Like Article 8, "Article 11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be" (Plattform Ärzte für das Leben v Austria).
In Young, James and Webster v United Kingdom, the ECHR said that the state is responsible for a violation of any Convention right which "is as a result of the non-observance of [its obligation under Article 1] in the enactment of domestic legislation". The state also has a responsibility "to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of [religious] beliefs and doctrines" (Otto-Preminger-Institut v Austria). In Rommelfanger v Germany (see p.12), the Commission considered that Article 10 imposes a positive obligation on the state to protect an employee against "compulsion in matters of freedom of expression which would strike at the very substance of this freedom".
The HRA has no equivalent of Article 1. However, during the Human Rights Bill's committee stage in the House of Lords, the Lord Chancellor said3: "The Bill gives effect to Article 1 by securing to people in the United Kingdom [the Convention rights]." No proceedings may be brought against the Government under the HRA for failing to legislate to prevent or remedy a violation of a Convention right (see note 25 on p.5), but the courts and tribunals, as public authorities with a duty not to act incompatibly with the Convention rights, must surely secure and protect employees' and others' Convention rights so far as is open to them under the HRA.
Alleged violations
The approach that is generally adopted by the ECHR (and likely to be followed by British courts and tribunals) when deciding whether or not there has been a violation of a Convention right is to:
An interference, restriction or limitation is "prescribed by law" or "in accordance with the law" only if it has "some basis in domestic law", whether legislation or the common law. That legal basis must also be both "accessible" to those concerned (that is, they must be able to have an adequate indication of the applicable law) and "foreseeable" as to its effects (that is, formulated with sufficient precision to enable those concerned to regulate their conduct: they must be able - if need be with appropriate advice - to foresee, not necessarily with absolute certainty but to a degree that is reasonable in the circumstances, the consequences that a given action may entail).
An interference, restriction or limitation is "necessary" in "a democratic society" if it corresponds to, or answers, a "pressing social need", it is "proportionate to the legitimate aim pursued" and the reasons put forward to justify it are "relevant and sufficient".
The hallmarks of a democratic society include pluralism, tolerance and broadmindedness. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (Young, James and Webster v United Kingdom).
The aims permitted by Articles 8(2), 9(2) and 11(2) include "the protection of the rights and freedoms of others", while those allowed under Article 10(2) include "the protection of the reputation or rights of others". Such others could include employers and other employees.
An interference, restriction or limitation would be disproportionate if its objective could have been achieved by other, less restrictive or intrusive, but equally effective, means.
DEGRADING TREATMENT
Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects. Treatment may be considered "degrading" if it is such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance. Moreover, it is sufficient if the victim is humiliated in his or her own eyes.
In Smith and Grady v United Kingdom, the ECHR would not exclude the possibility that "treatment which is grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority ... could, in principle, fall within the scope of Article 3". However, while accepting that the Ministry of Defence's former policy of excluding homosexuals from the armed forces (together with the investigation and discharge that ensued) was undoubtedly distressing and humiliating for the applicants, the ECHR did not consider that the treatment reached the minimum level of severity necessary to bring it within the scope of Article 3.
COMPULSORY LABOUR
Article 4 does not define what is meant by "compulsory labour" but, for the purposes of ILO Convention No.29, the term "forced or compulsory labour" means "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily". That definition can provide a starting point for the interpretation of Article 4, but without losing sight of the Convention's "special features" or of the fact that it is a "living instrument" to be read "in the light of the notions currently prevailing in democratic states".
"Labour" means work of any kind, whether paid or unpaid, and not just manual work, while "compulsory" can not refer just to any form of legal compulsion or obligation. For example, work to be carried out in pursuance of a freely negotiated contract cannot be regarded as falling within the scope of Article 4 on the sole ground that one of the parties has undertaken with the other to do that work and will be subject to sanctions if he or she does not honour his or her promise. There has to be work "exacted ... under the menace of any penalty" and also performed against the will of the person concerned - that is, work for which he has "not offered himself voluntarily".
Having held that there existed a risk comparable to "the menace of [a] penalty", and then that relative weight is to be attached to the argument that the applicant consented in advance to the situation complained of, the ECHR has had regard to all the circumstances of the case in the light of the underlying objectives of Article 4 to determine whether or not the work or service required of the applicant fell within the prohibition of compulsory labour. That could be so, in the case of a service required to gain access to a given profession, if "the service imposed a burden [of work or a financial burden] which was so excessive or disproportionate to the advantages attached to the future exercise of the profession that the service could not be treated as having been voluntarily accepted beforehand" (Van der Mussele v Belgium).
Applying that approach, could work under a contract of employment that provided for the repayment by the employee of the cost of training him or her ever constitute "compulsory labour"?
FAIR TRIAL
Article 6(1) applies to disputes over the existence or scope of "civil rights or obligations" which can be said, at least on arguable grounds, to be recognised under domestic law. Such disputes must also be "genuine and of a serious nature", and the outcome of the proceedings must be "decisive" for "civil right or obligations". Disputes concerning private-law relations between employers and employees, such as those relating to a dismissal or suspension, are "civil" disputes for the purposes of Article 6(1) (Obermeier v Austria).
The ECHR has also held that the statutory rights not to be unfairly dismissed, and not to be unlawfully discriminated against, are "civil rights" within the meaning of Article 6(1) (see Darnell v United Kingdom and Tinnelly and McElduff v United Kingdom). In Smith v Secretary of State for Trade and Industry, the EAT agreed with a submission that an employee's right to receive money on the insolvency of his or her employer is likely to be classified as a "civil right".
Civil servants
The only disputes excluded from the scope of Article 6(1) are "those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the state or other public authorities". The armed forces and the police provide a "manifest example" of such activities.
The test, in each case, is "whether the applicant's post entails - in the light of the nature of the duties and responsibilities appertaining to it - direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the state or of other public authorities" (Pellegrin v France).
Disciplinary proceedings
Article 6(1) can apply to internal disciplinary proceedings that may result in dismissal (Darnell v United Kingdom). The conduct of such proceedings by an employer need not conform to the requirements of Article 6(1), however, if the employee has the right to complain of unfair dismissal to an employment tribunal, except possibly where he or she was dismissed on the word of an anonymous informant.
Right of access
Article 6(1) embodies "the right of access to a court" (that is, the right to have any claim relating to civil rights or obligations brought before a court or tribunal). Where Article 6(1) applies, it guarantees an effective right of access to a court or tribunal as well as the right set out in the text of Article 6(1).
Legal aid
The possibility of appearing before a court or tribunal in person, without a lawyer's assistance, may provide the applicant with an effective right of access. Much must depend on the particular circumstances. Equally, Article 6(1) may sometimes compel the state to provide for the assistance of a lawyer "when such assistance proves indispensable for an effective access to court ... by reason of the complexity of the procedure or of the case" (Airey v Ireland).
Within his controlled budget, the Lord Chancellor could not realistically consider making legal aid available in employment tribunals beyond a very limited category of case. If he were to extend legal aid to some employment tribunal cases, factors to be considered would include the complexity of the case, factually or legally, the public importance of the issues at stake and the availability to the applicant of other sources of representation4.
ACAS arbitration scheme
The right of access to a court may be waived by, for example, an agreement to submit a dispute to arbitration. The reference of a complaint of unfair dismissal to an arbitrator under the ACAS arbitration scheme (see Employment Rights (Dispute Resolution) Act 1998), which is now due to be introduced in the spring of 2001, would be permissible given that it would be voluntary. However, without a right of appeal on the merits, there could be a violation of Article 6(1) (see, for example, Obermeier v Austria).
Restrictions on access
The right of access is not absolute but may be subject to limitations, such as limitation periods. These must not impair the "very essence" of the right, while they must have a legitimate objective and be proportionate.
An international organisation's immunity from suit in employment litigation has been held by the ECHR to be proportionate to the objective of enabling international organisations to perform their functions efficiently. The organisation's staff had available to them reasonable alternative means to protect their Convention rights effectively (Waite and Kennedy v Germany). In another case, however, the ECHR concluded that the Secretary of State's issuing of national security certificates, pursuant to (what is now) article 80 of the Fair Employment and Treatment (Northern Ireland) Order 1998, constituted a disproportionate restriction on the applicants' right of access to a court or tribunal. It brought to a halt the Fair Employment Tribunal's further consideration of the case (Tinnelly and McElduff v United Kingdom).
In McElduff, the ECHR also observed: "The right guaranteed to an applicant under Article 6(1) of the Convention to submit a dispute to a court or tribunal in order to have a determination of questions of both fact and law cannot be displaced by the ipse dixit of the executive."
Qualifying periods
In Stedman v United Kingdom, the Commission concluded that the restriction of access to an employment tribunal caused by the then two-year unfair dismissal qualifying period was "not arbitrary and did not impair the very essence of the right". The Commission considered that "restricting access to an [employment] tribunal for unfair dismissal to employees of two years standing pursued the legitimate aim of offering protection to those in established employment who had given a minimum of two years service to an employer, without burdening the employer to the extent that dismissal within a two year 'probationary period' was likely to lead to court proceedings".
Fair hearing
The right to a "fair" hearing requires that everyone who is a party to the proceedings must be given a reasonable opportunity of presenting his or her case, including his or her evidence, under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent. Every party to the hearing must be allowed to know and to comment upon all the evidence adduced and all legal submissions made by others, with a view to influencing the tribunal's decision. Further, the burden and standard of proof must not be such as to create an imbalance between the parties.
An employment tribunal could be acting incompatibly with the right to a fair hearing were it to admit evidence that was obtained in breach of another Convention right.
Public hearing
The right to a "public" hearing implies a right to an oral hearing, unless, for example, no issue of fact or law requiring such a hearing arises. It is also subject to the restrictions set out in the text of Article 6(1), which are likely to justify the making of a restricted reporting order.
Judgment is "pronounced publicly" if the tribunal makes it available to the public in a register or otherwise publishes it in writing.
Timely hearing
The reasonableness of the length of proceedings is to be determined by reference to the particular circumstances of the case, which may call for either a "global assessment" or the application of such criteria as the complexity of the case or the proceedings, the applicant's and the tribunal's conduct and what is "at stake" for the applicant. In Obermeier v Austria, the ECHR stressed that "an employee who considers that he has been wrongly suspended by his employer has an important personal interest in securing a judicial decision of the lawfulness of that measure promptly".
Independent tribunal
To establish whether or not a tribunal can be considered "independent" (of the Government and of the parties to the proceedings), regard must be had to, among other things, the manner of appointment of its members, their term of office (during which they should be protected from removal), the existence of "guarantees against outside pressures" and whether or not the tribunal "presents an appearance of independence".
In Smith v Secretary of State for Trade and Industry, the EAT questioned whether an employment tribunal is an "independent and impartial tribunal" when dealing with cases involving the Secretary of State. The Government believed that employment tribunals could "properly and lawfully adjudicate in such cases"5. But, following the judgment of the High Court of Justiciary in Scotland in Starrs v Ruxton, the Lord Chancellor announced new conditions of service for part-time employment tribunal chairs and lay members6.
Impartial tribunal
Impartiality normally denotes an absence of prejudice or bias. The test is both subjective (that is, endeavouring to ascertain the personal conviction of a given judge in a particular case) and objective (that is, determining whether or not that judge offered guarantees sufficient to exclude any legitimate doubt in this respect). Personal impartiality is to be presumed until there is proof to the contrary.
PRIVATE LIFE
In the leading case on the notion of "private life", Niemietz v Germany, the ECHR did not consider it possible or necessary to attempt an exhaustive definition. "However," the ECHR said, "it would be too restrictive to limit the notion to an 'inner circle' in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings."
The ECHR went on: "There appears, furthermore, to be no reason of principle why this understanding of the notion of 'private life' should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world."
In Brüggemann and Scheuten v Germany, the Commission said: "The right to respect for private life is of such a scope as to secure to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. To this effect, he must also have the possibility of establishing relationships of various kinds, including sexual, with other persons."
The concept of "private life" also covers a person's physical and moral integrity, including his or her sex life (X and Y v Netherlands), while sexual orientation and activity concern "a most intimate aspect of a person's private life" (Smith and Grady v United Kingdom). Yet another aspect of "private life" is the right to choose one's mode of dress or appearance.
Interferences
Each of the following, some of which are considered more fully below, is likely to constitute an "interference" (within the meaning of Article 8(2)) with the exercise of affected employees' rights to respect for their "private life":
To the extent that any such interference involves the "processing" of "personal data" within the meaning of the Data Protection Act 1998 (see The Data Protection Act 1998), the requirements of that Act must, so far as possible, be interpreted and applied in a way that is compatible with the rights set out in Article 8. The Data Protection Commissioner appears to have put just such an interpretation on those requirements in the draft Code of Practice, on the use of personal data in employer/employee relationships, that she has issued for public consultation (see Draft guidance on use of personal data in employment issued for consultation).
For medical testing or surveillance (assuming that is "in accordance with the law") to be justified in terms of Article 8(2), there must exist, for example, a risk to safety or of theft that cannot be prevented by less intrusive means.
Sexual orientation
"Particularly serious reasons" are needed to justify interferences that concern sexual orientation and activity. In Smith and Grady v United Kingdom, the ECHR was of the view that discharging service personnel from the armed forces just because they were homosexual constituted an interference with the exercise of their right to respect for their private lives which was not justified by the negative attitudes of heterosexual personnel towards those of homosexual orientation.
To the extent that those negative attitudes represented "a predisposed bias on the part of a heterosexual majority against a homosexual minority", they could not, of themselves, be considered by the ECHR to amount to sufficient justification for the interference "any more than similar negative attitudes towards those of a different race, origin or colour".
Consequently, a case such as Saunders v Scottish National Camps Association Ltd could now be differently decided. In that case, both the EAT in Scotland and the Court of Session upheld an employment tribunal's decision that the dismissal of a maintenance handyman at a children's camp, not simply because he was gay but by reason of his homosexual activities outside work, was fair. The tribunal had found that "a considerable proportion of employers would take the view that the employment of a homosexual should be restricted, particularly when required to work in proximity and contact with children".
Dress codes
An employer's dress code based on its own internal policy is "in accordance with the law". Further, if the code's aim were to enable the employer to enhance its image in its dealings with the public, it could be said to be for "the protection of the rights ... of others" (in the sense of protecting the employer's proper functioning and carrying out of its duties on behalf of the public). And a requirement that employees dress "appropriately" to their gender could reasonably be regarded by the employer as "necessary" to safeguard its public image (Kara v United Kingdom).
In Kara, the Commission considered that "employers may require their employees to conform to certain dress requirements which are reasonably related to the type of work being undertaken, eg safety helmets, hygienic coverings, uniforms. This may also involve requiring employees, who come into contact with the public or other organisations, to conform to a dress code which may reasonably be regarded as enhancing the employer's public image and facilitating its external contacts."
Employment records
Were an employee to seek an injunction restraining his or her employer from disclosing any information on, say, his or her personnel file to a third party (see, for example, Dalgleish and others v Lothian and Borders Police Board), the court could develop the tort of breach of confidence so as to make it compatible with the employee's right to respect for his or her "private life".
FAMILY LIFE
Whether or not "family life" exists is, according to the Commission, essentially a question of fact depending on "the real existence in practice of close personal ties" (K v United Kingdom). The mutual enjoyment by a parent and his or her child of each other's company constitutes a fundamental element of "family life" (Olsson v Sweden), while "respect" for it means that the state must act in a manner calculated to allow those concerned to lead a "normal" family life (Marckx v Belgium).
It could be argued that the Maternity and Parental Leave etc Regulations 2000 (see Maternity and parental leave) do not secure an effective respect for family life because they confer a right to unpaid parental leave, which most working parents can not afford to take.
What about working hours that are not "family-friendly"? In Stedman v United Kingdom, the Commission did not consider that, "given the almost inevitable compromise and balance between work and family commitments, particularly in families where both partners work", requiring an assistant manager in a branch of a travel agency to work on a Sunday on a rota basis amounted to an interference with the exercise of her right to respect for her family life.
HOME
The word "home" extends to business premises, such as a professional person's office (Niemietz v Germany). So the execution of a search order (formerly known as an Anton Piller order), allowing entry to premises to search for, examine and remove or copy the articles specified in the order, would - even if the premises were business premises - constitute an interference with the exercise of the respondent's right to respect for his or her "private life" and "home". It could, however, be justified in terms of Article 8(2) (see Chappell v United Kingdom).
There could also be an interference with the exercise of an employee's right to respect for his or her private life and home where a private investigator, instructed by the employer, took photographs of the employee at home, while he or she was signed off work, to prove that he or she was malingering.
CORRESPONDENCE
The word "correspondence" means communication by letter or other means. Moreover, telephone calls made by an employee at work, on an office telephone, may be covered by the notions of "private life" and "correspondence" within the meaning of Article 8(1). And the employee would have had a reasonable expectation of privacy for such calls if no warning had been given to him or her, as a user of the system operated by the employer, that calls made on that system would be liable to interception (Halford v United Kingdom). The same must go for e-mails sent by an employee at work, on an office computer, and his or her use of the internet at work.
Intercepting communications
Recording or monitoring telephone calls or e-mails made or sent by an employee, or his or her use of the internet, at work constitutes an interference with the employee's right to respect for his or her "private life" and "correspondence".
For such an interference to be "in accordance with the law", it must have been authorised by the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 if the employee and the intended recipient had not consented to it (see The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000). So far as it is possible to do so, the courts must interpret and apply those Regulations in a way that is compatible with the Convention right set out in Article 8. They could, therefore, decide that monitoring did not pursue an aim permitted by Article 8(2) or that the level of intrusion was disproportionate. The courts could also develop the new tort of unlawful interception so as to make it compatible with the Convention right.
RELIGIOUS FREEDOM
Article 9 embodies both an absolute right to freedom of thought, conscience and religion, including freedom to change one's religion or beliefs, and a qualified right to freedom to manifest one's religion or beliefs. The notions of "religion" and "beliefs" cover not only Christianity, Islam, Hinduism and Buddhism but also minority religions and non-religious beliefs.
In Ahmad v United Kingdom, the Commission decided that an education authority's refusal to allow a Muslim primary school teacher to take 45 minutes off work every Friday, to pray at his mosque, did not give rise to a breach of Article 9. He was free to resign if and when he found that his teaching obligations conflicted with his religious duties. Whether that case would be decided differently in our more religiously liberal times is, in the Lord Chancellor's view, "debatable"4.
More recently, in Konttinen v Finland, the Commission found no indication that the dismissal of a civil servant employed by the Finnish state railways, who was a seventh-day adventist, interfered with the exercise of his rights under Article 9(1). The reason for his dismissal was that he had, on six separate occasions and in breach of his contract of employment, absented himself from work without permission before his Friday evening shift had ended. He had repeatedly been warned that further such absences might result in dismissal, but had maintained that he would continue to refrain from working on the Sabbath, which starts at sunset on Friday, in accordance with his religious convictions.
In those particular circumstances, the Commission found that the applicant was not dismissed because of his religious convictions but for having "refused to respect his working hours". Even if the refusal had been motivated by religious convictions, it could not as such be considered protected by Article 9(1). Nor had the applicant shown that he was pressurised to change his religious views or prevented from manifesting his religion or belief. The Commission added that, having found his working hours to conflict with his religious convictions, the applicant was free to resign. It regarded this as "the ultimate guarantee of his right to freedom of religion".
Similarly, in Stedman v United Kingdom, the Commission rejected a complaint that the dismissal of an assistant manager in a branch of a travel agency for refusing to work on Sundays, which she considered should be a day devoted to non-commercial, family and religious activities, interfered with her freedom "to manifest [her] religion ... in worship ... practice and observance". She was dismissed "for failing to agree to work certain hours rather than [for] her religious belief as such and was free to resign and did in effect resign from her employment".
Section 13
By s.13 of the HRA, a court or tribunal must "have particular regard to the importance of [the Convention right to freedom of thought, conscience and religion]" if its determination of any question arising under the HRA might "affect the exercise by a religious organisation (itself or its members collectively) of [that right]". This is intended to "reassure" churches and other religious organisations that the HRA will not be used to "intrude upon genuinely religious beliefs or practices"7.
FREE EXPRESSION
Article 10 does not distinguish between the various forms of expression. It covers words (whether spoken or written), pictures, images and actions intended to express an idea or to present information.
The right to freedom of expression applies not only to "information" or "ideas" that are favourably received, or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Its exercise is subject to a number of exceptions, set out in Article 10(2), but these must be narrowly interpreted and the necessity for any restrictions must be convincingly established (see, for example, Vogt v Germany).
Whoever exercises his or her freedom of expression also undertakes "duties and responsibilities", the scope of which depends on the position he or she holds and the technical means he or she uses (see, for example, Morissens v Belgium). Among such "duties and responsibilities" may legitimately be included "an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs" (Otto-Preminger-Institut v Austria).
Contracting out
In Rommelfanger v Germany, the Commission noted that, by entering into a contract of employment with a Catholic foundation, an employee accepted a duty of loyalty towards the Catholic church which limited his freedom of expression to a certain extent. The Commission said: "Similar obligations may also be agreed with other employers ... In principle, the Convention permits contractual obligations of this kind if they are freely entered into by the person concerned. A violation of such obligations normally entails the legal consequences stipulated in the contract, including dismissal. Their enforcement with the assistance of the competent state authorities does not as such constitute an 'interference by public authority' with the rights guaranteed by Article 10(1)."
The Commission went on to examine whether or not the state had an obligation to secure the employee's right to freedom of expression against the sanction of dismissal taken by his employer, for expressing opinions on abortion in conflict with the church's views. The Commission was satisfied that German law, as interpreted by the highest German court, took account of "the necessity to secure an employee's freedom of expression against unreasonable demands of his employer, even if they should result from a valid employment contract".
The Commission added: "If, as in the present case, the employer is an organisation based on certain convictions and value judgments which it considers as essential for the performance of its functions in society, it is in fact in line with the requirements of the Convention to give appropriate scope also to the freedom of expression of the employer. An employer of this kind would not be able to effectively exercise this freedom without imposing certain duties of loyalty on its employees.
"As regards employers such as the Catholic foundation ... the law in any event ensures that there is a reasonable relationship between the measures affecting freedom of expression and the nature of the employment as well as the importance of the issue for the employer. In this way it protects an employee against compulsion in matters of freedom of expression which would strike at the very substance of this freedom."
Whistleblowing
So far as it is possible to do so, provisions inserted into the Employment Rights Act 1996 ("the ERA") by the Public Interest Disclosure Act 1998 (see The Public Interest Disclosure Act 1998) must be interpreted and applied by employment tribunals in a way that is compatible with the Convention right to freedom of expression. Those provisions protect workers who make certain disclosures of information in the public interest (s.43B(1) of the ERA), not including disclosures that involve the commission of a criminal offence (s.43B(3)), in accordance with strict conditions (ss.43C-43H). The exercise of a whistleblower's freedom of expression, on the other hand, may well be less circumscribed.
Confidential information
The exercise of the freedom "to receive and impart information" may be subject to such "restrictions" as "are prescribed by law and are necessary in a democratic society ... for preventing the disclosure of information received in confidence". Were an employer now to seek an injunction restraining an ex-employee from disclosing confidential information to a competitor, the court could develop the implied duty of fidelity and the tort of breach of confidence so as to make them compatible with the Convention rights. The court would also be required, by s.12 of the HRA, to "have particular regard to the importance of the Convention right to freedom of expression" when considering whether or not to grant an injunction which, if granted, "might affect the exercise of [that right]".
Dress codes (again)
The right to freedom of expression may include the right for a person to express his or her opinions or ideas through the way he or she dresses (Stevens v United Kingdom). However, that case suggests that, even if an employer's dress code prevents employees from expressing a particular opinion or idea by means of their clothing, it will not restrict the exercise of their rights under Article 10 if they remain free to express themselves as they wish outside work. Moreover, even if the code did constitute a restriction, it could be justified as being "prescribed by law" and "necessary in a democratic society ... for the protection of the reputation or rights of others" (see p.10).
Therefore, a case such as Boychuck v HJ Symons Holdings Ltd is unlikely now to be decided differently. In that case, the EAT upheld an employment tribunal's decision that the dismissal of an accounts clerk for insisting on wearing a badge with the words "Lesbians Ignite" on it was fair. She came into contact with the public from time to time, and it was within the employer's discretion to instruct an employee not to wear something that could be expected to be offensive to other employees or to customers.
Political activities
In Vogt v Germany, the ECHR held that the dismissal of a schoolteacher on account of her political activities as a member of the German Communist Party, in breach of her duty of political loyalty, was an unjustified interference with the exercise of her rights to freedom of expression and of association (guaranteed under Article 11). The teacher's job did not intrinsically involve any security risks, and the need to remove her pupils from her influence was not a very pressing one. More recently, however, the ECHR has held that restrictions on the political activities of certain categories of local government officials did not give rise to a breach of Article 10 (Ahmed and others v United Kingdom).
PEACEFUL PICKETING
So far as it is possible to do so, both s.220 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the TULR(C)A"), which makes peaceful picketing in contemplation or furtherance of a trade dispute lawful, and the picketing Code of Practice must be interpreted and applied in a way that is compatible with the right to freedom of peaceful assembly guaranteed under Article 11.
Were an injunction restraining un-lawful picketing to be sought (see, for example, News Group Newspapers Ltd and others v SOGAT '82 and others), the court could develop the torts of (public and private) nuisance, intimidation, harassment and interference with contract so as to make them compatible with the Convention right to freedom of peaceful assembly. Section 12 of the HRA, which restricts the granting of injunctions that might affect freedom of expression, would also be applicable (see Middlebrook Mushrooms Ltd v TGWU).
TRADE UNIONS
The "right to form and to join trade unions" is a special aspect of the wider right to freedom of association guaranteed under Article 11(1), but it does not guarantee any particular treatment of trade unions, or their members, such as the right to be consulted (National Union of Belgium Police v Belgium) or the right to recognition (Swedish Engine Drivers' Union v Sweden). Only rights that are "indispensable for the effective enjoyment of trade union freedom" are inherent in the right to form and to join trade unions.
Industrial action
However, the words "for the protection of his interests" in Article 11(1) show that "the Convention safeguards freedom to protect the occupational interests of trade union members by [industrial] action, the conduct and development of which the contracting states must both permit and make possible". It follows that "the members of a trade union have a right, in order to protect their interests, that the trade union should be heard". What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members' interests.
The right to strike is an important aspect of that protection, but it is not enshrined in Article 11(1) and it "may be subject under national law to regulation of a kind that limits its exercise in certain instances" (Schmidt and Dahl-ström v Sweden).
Anything that adds a further procedural hurdle in the path of a union that wishes to call for industrial action limits the practical exercise of the right to strike, but such a hurdle must amount to a "significant limitation on the right to take collective action" to be inherently incompatible with the right of a trade union under Article 11(1) to protect its members' occupational interests (NATFHE v United Kingdom).
Union rules
A person's right to join a trade union "for the protection of his interests" cannot be interpreted as conferring a general right to join the union of one's choice irrespective of the rules of the union. In the exercise of their rights under Article 11(1), unions must remain free to decide, in accordance with union rules, questions concerning admission to and expulsion from the union.
Nonetheless, for the right to join a trade union to be effective, the state must protect the individual against any abuse of a dominant position by trade unions. Such abuse might occur, for example, where exclusion or expulsion was not in accordance with union rules, where the rules were wholly unreasonable or arbitrary or where the consequences of exclusion or expulsion resulted in exceptional hardship such as the loss of one's job (Cheall v United Kingdom).
Negative right
Article 11 encompasses the right not to join or to withdraw from a trade union or other association, but the ECHR has left open the question of whether or not this negative right is to be considered on an equal footing with the positive right (Sigurjónsson v Iceland). Assuming that it does not, compulsion to join a particular trade union may not always be contrary to the Convention. But a form of such compulsion which, in the circumstances of the case, "strikes at the very substance of the freedom [of association] guaranteed by Article 11" will constitute an interference with that freedom (Young, James and Webster v United Kingdom).
In Sibson v United Kingdom, members of a trade union threatened to strike if a fellow employee, who had resigned from the union and joined another one, was not moved elsewhere. To avert a strike, the employer offered the employee the choice of rejoining the union or moving to a nearby depot to which it was contractually entitled to move him. The ECHR held that the employee "was not subjected to a form of treatment striking at the very substance of the freedom of association guaranteed by Article 11". The case was distinguished from Young on the grounds that the employee was not faced with a threat of dismissal and had no principled objection to rejoining the union. Nor was the depot at which he was based a closed shop.
In Gustafsson v Sweden, the ECHR held that industrial action primarily aimed at making an employer apply to his employees a collective agreement to which he was not a party did not infringe his (negative) right to freedom of association. He did not have to join an employers' association, and Article 11 does not, as such, guarantee a right not to recognise a union.
The ECHR is due to decide whether or not UK law failed to protect the interests of trade union members who refused to sign "personal" contracts of employment including pay increases in return for giving up their rights to union representation (Wilson and others v United Kingdom).
Restrictions
The state may impose "lawful" restrictions on the exercise by members of the armed forces, the police or "the administration of the state" of the right to form and to join trade unions for the protection of their interests. For restrictions to be "lawful", they must be both in accordance with domestic law and not arbitrary (CCSU v United Kingdom). In Vogt v Germany, the ECHR agreed with the Commission that the notion of "administration of the state" should be interpreted narrowly, in the light of the post held by the official concerned.
NON-DISCRIMINATION
The Convention rights do not include a free-standing right not to be discriminated against. Article 14 prohibits discrimination solely in relation to the "enjoyment" of the substantive Convention rights.
The Articles enshrining the substantive rights may be violated alone and/or in conjunction with Article 14. If the ECHR does not find a separate breach of one of those Articles that has been invoked both on its own and together with Article 14, it must also examine the case under Article 14 (as a breach of Article 14 does not presuppose a breach of that other Article). On the other hand, such an examination is not generally required when the ECHR finds a violation of the other Article taken alone.
Prohibited grounds
The list of prohibited grounds in Article 14 is not exhaustive, and includes sexual orientation. In Sutherland v United Kingdom, the Commission left open the question of whether discrimination based on sexual orientation is on grounds of "sex" or of "other status".
Concept of discrimination
Discrimination within the scope of Article 14 has been interpreted by the ECHR to mean treating differently, on one or more of the prohibited grounds, people in "analogous" or "relevantly similar" situations, without any "objective and reasonable justification". A difference in treatment has no such justification if it does not pursue a "legitimate aim", or if there is no "reasonable relationship of proportionality between the means employed and the aim sought to be realised". In addition, "very weighty reasons" must be put forward to justify discrimination on grounds of sex or race.
Indirect discrimination
British courts and tribunals could interpret discrimination within the scope of Article 14 to include the concept of indirect discrimination (which the ECHR has not yet done), with the result that, for example, a rule against wearing beards could be held to constitute an indirectly discriminatory limitation on a Sikh employee's freedom to manifest his religion or beliefs (contrary to Panesar v Nestle Co Ltd).
Sex discrimination
An employer's dress or appearance code which permitted a distinction to be drawn between men and women as to, for example, hair length should give rise to a violation of Article 14 taken together with Article 8, with the result that a case such as Smith v Safeway plc would be decided differently.
Race discrimination
Section 8 of the Asylum and Immigration Act 1996 makes it a criminal offence for an employer to employ a person who is not allowed under immigration rules to work for that employer, unless it had seen and kept or copied one of a number of specified documents that appeared to give the person the right to work for it. For an employer to insist upon the production of such a document as a condition of employment could violate Article 14 taken in conjunction with Article 8.
Religious discrimination
A Muslim shop worker could argue that, even if a refusal to allow him or her time off for religious observance does not give rise to a violation of Article 9 on its own, it does violate Article 14, taken together with Article 9, because ss.36 -43, 45 and 101 of the ERA protect (Christian) shop workers who object to Sunday working or refuse to work on Sundays.
However, in Konttinen v Finland (see also p.11), the Commission rejected a seventh-day adventist's complaint that he was discriminated against because his employer respected his colleagues' right to respect the Sabbath on Sunday but failed to respect his right to keep it on Saturday. The Finnish legislation on working hours provided that the weekly rest day was usually Sunday, but it did not also guarantee members of a certain religious community any absolute right to have a particular day regarded as their holy day. Therefore, assuming that the applicant's situation could be considered comparable to that of members of other religious communities, the Commission found that he had not been treated differently in comparison with such members.
Protocol No.12
The Council of Europe has adopted the text of an additional Protocol to the Convention, No.12, Article 1 of which reads: "The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as [those set out in Article 14]. No one shall be discriminated against by any public authority on any ground such as those mentioned in [Article 14] ..." (emphasis added).
The Government has no plans at present to sign and ratify Protocol No.12. It is "in principle" in favour of extending Article 14 to provide a free-standing right against discrimination, but it considers that the text of Protocol No.12 is "too general and open-ended". In particular, the Protocol does not make clear whether "rights set forth by law" include international as well as national law; it does not make provision for positive measures; and it does not follow the case law of the ECHR in allowing objective and reasonably justified distinctions8. It does not provide any exception, and the Government is also concerned that the ECHR might hold that a right set out in an international agreement, but not incorporated into UK law, is covered by it9.
References
1 The Council of Europe's European Social Charter is the economic and social counterpart of the Convention.
2 18.11.97, Hansard (HL), col. 522.
3 18.11.97, Hansard (HL), col. 475.
4 Speech to the Council of Employment Tribunal Chairmen Conference, 17.4.99.
5 17.5.00, Hansard (HL), col. WA25.
6 27.7.00, Hansard (HL), cols. WA71-WA72.
7 20.5.98, Hansard (HC), cols. 1020-1021.
8 11.10.00, Hansard (HL), col. WA37.
9 23.10.00, Hansard (HL), col. WA14.
European Convention on Human Rights and Fundamental Freedoms
...
Article 3
Prohibition of torture
No one shall be subjected to ... degrading treatment ...
Article 4
Prohibition of slavery and forced labour
...
2. No one shall be required to perform ... compulsory labour.
...
Article 6
Right to a fair trial
1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial ... where ... the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
...
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 wellbeing 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.
Article 9
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
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 ...
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.
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 freedom 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.
...
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.
...
CASE LIST
Ahmad v United Kingdom (1982) 4 EHRR 126
Ahmed and others v United Kingdom [1999] IRLR 188
Airey v Ireland (1979) 2 EHRR 305
Boychuck v HJ Symons Holdings Ltd [1977] IRLR 395
Brüggemann and Scheuten v Germany (1977) 10 DR 100
Chappell v United Kingdom (1990) 12 EHRR 1
Cheall v United Kingdom (1985) 42 DR 178
CCSU v United Kingdom (1987) 50 DR 228
Dalgleish and others v Lothian and Borders Police Board [1991] IRLR422
Darnell v United Kingdom (1991) 69 DR 306
Gustafsson v Sweden (1996) 22 EHRR 409
Halford v United Kingdom [1997] IRLR 471
Hilton v United Kingdom (1988) 57 DR 108
K v United Kingdom (1986) 50 DR 199
Kara v United Kingdom [1999] EHRLR 232
Konttinen v Finland 3.12.96 European Commission of Human Rights (Application No.24949/94)
Marckx v Belgium (1979) 2 EHRR 330
Middlebrook Mushrooms Ltd v TGWU [1993] IRLR 232
Morissens v Belgium (1988) 56 DR 127
NATFHE v United Kingdom (1998) 25 EHRR CD 122
National Union of Belgium Police v Belgium (1975) 1 EHRR 578
News Group Newspapers and others v SOGAT '82 and others [1986] IRLR 337
Niemietz v Germany (1992) 16 EHRR 97
Obermeier v Austria (1990) 13 EHRR 290
Olsson v Sweden (1988) 11 EHRR 259
Otto-Preminger-Institut v Austria (1994) 19 EHRR 34
Panesar v Nestle Co Ltd [1980] IRLR 60
Pellegrin v France 8.12.99 ECHR (Application No.28541/95)
Plattform Ärzte für das Lebeb v Austria (1988) 13 EHRR 204
Rommelfanger v Germany (1989) 62 DR 151
Saunders v Scottish National Camps Association Ltd [1980] IRLR 174 and [1981] IRLR 277
Schmidt and Dahlström v Sweden (1976) 1 EHRR 632
Sibson v United Kingdom (1993) 17 EHRR 193
Sigurjónsson v Iceland (1993) 16 EHRR 462
Smith v Safeway plc [1996] IRLR 456
Smith v Secretary of State for Trade and Industry [2000] IRLR 6
Smith and Grady v United Kingdom [1999] IRLR 734
Starrs v Ruxton (2000) SLT 42
Stedman v United Kingdom (1997) 23 EHRR CD 168
Stevens v United Kingdom (1986) 46 DR 245
Sutherland v United Kingdom 1.7.97 European Commission of Human Rights Application No.25186/94
Swedish Engine Drivers' Union v Sweden (1976) 1 EHRR 617
Tinnelly and McElduff v United Kingdom (1998) 27 EHRR 249
Van der Mussele v Belgium (1983) 6 EHRR 163
Vogt v Germany (1995) 21 EHRR 205
Waite and Kennedy v Germany (1999) 6 BHRC 499
Wilson and others v United Kingdom 16.9.97 European Commission of Human Rights Application Nos. 30668/96, 30671/96 and 30678/96
X and Y v Netherlands (1985) 8 EHRR 235
Young, James and Webster v United Kingdom [1981] IRLR 408
