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Human Rights Act 2001 – Practical implication for employment advisers
At long last the Human Rights Act 2001 is coming into force in the Isle of Man. After a lengthy and somewhat unexplained delay the Act came into force on 1st November 2006. There has been a conspicuous lack of any fanfare to celebrate this important event and there appears also to have been a distinct lack of training and education for those in the public sector and the public generally. Nevertheless, one must congratulate the Isle of Man Government for bringing this Act fully into force at a time when there have been calls to repeal the Human Rights Act 1998 of the UK Parliament.
The Act
The Human Rights Act 2001 in effect incorporates the rights guaranteed by the European Convention on Human Rights into Isle of Man law.
The primary aims of incorporation are -
a) To enable convention rights to be enforced in the Isle of Man.
b) To enable alleged breaches of rights in the Isle of Man to be decided by the Isle of Man Courts and tribunals rather than the European Court of Human Rights (ECHR).
c) To ensure closer scrutiny of human rights implications of new legislation.
These three aims emphasise in many ways the essentially procedural nature of the Act.
1. An important point to remember is that the Act maintains parliamentary sovereignty by enabling the Courts to make declarations of incompatibility but they cannot strike down an Act of Tynwald.
2. The central provision of the Act is that all public authorities must act in compliance with the Convention and Section 6 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
3. If a Court finds that an act of a public authority is unlawful it may award damages although the Court must take into account the awards made by the European Court of Human Rights in Strasbourg and these have in the past been relatively low. Eg. Johnson v UK (1995) - £10,000 for unlawful detention of a mental patient for over 3 years. Contrast Lustig Prean, Grady, Smith and Beckett v UK (2000) - assessment of compensation for gay service personnel dismissed in violation of Article 8. Financial loss - £50 - £90k per applicant and non-pecuniary loss of £19k for each applicant for injury to feelings.
4. The impact of the Act in the UK on employment law has in fact been relatively modest.
5. Perhaps this is unsurprising because the convention itself has its primary focus on individual civil and political rights rather than protecting social and economic rights as workers.
The Private and Public Divide
6. It is vital to understand a crucial distinction between vertical employment relations (state/citizen), which is to say relations which obtain in the context of employment by public authorities, and horizontal employment relations (citizen/citizen), i.e. relations between employees and employers in the purely private sector. As a general proposition, it is true to say that those who are employed by public authorities seem to be intended to have substantially enhanced rights as against their employers when compared with those working in the private sector.
7. It may be said that this is somewhat ironic in an era when the principles of equal treatment have come to be regarded as the key to good industrial relations practice. However the Act seems to embody a set of legal principles which ensure that employees doing similar types of work are treated differently simply because they are doing work for public as opposed to private bodies.
8. What then is a public authority? In the Isle of Man the matter may not be as complex as it has proved to be in the UK. In general terms there is a fairly clear distinction here between public authorities such as local authorities, government departments, the police etc and the private sector but there may be instances of hybrid authorities which have mixed private and public functions and will only be treated as public authorities where the act which is being impugned is public rather than private in nature. (Examples of UK “hybrids” might be Railtrack, NSPCC, Group 4 or other private security companies, doctors in general NHS practice).
9. Importantly, a “public authority” includes a Court or tribunal.
10. The practical implications of the Act in the employment context may be said to be as follows:-
1. Employees who are employed by “obvious” public authorities such as government departments and local authorities will very probably be able to challenge any act of their employers which is incompatible with their Convention rights on the ground that those actions give rise to a statutory legal right of action for the purposes of Section 6 of the Act. If the employee is a “victim”, and has suffered damage he or she may be awarded compensation. It is also possible to apply for an injunction or a declaration as to rights.
2. However, private sector employees will not be able to use the Act directly. What however they can do is to obtain protection of their Convention rights indirectly for example by arguing that a Court or employment tribunal will be in breach of its own statutory obligation to act compatibly with the Convention if it for example (a) fails to develop common law principles relating to the contract of employment so as to be consistent with the employee’s Convention rights or (b) fails to construe legislation in a similar manner.
11. Let us look at some practical examples.
12. Say we have a civil servant who is dismissed for expressing political views which run contrary to those of her Department. In addition to any claim for unfair dismissal which she might bring under the Employment Act 1991, she may also have a freestanding Section 6 claim against the Government Department for breach of her Article 10 right to freedom of expression.
13. Compare however the position of Mr. C who was employed by a local bank. Let us say that he speaks out publicly against the bank claiming that all banks should be nationalised and that they exert a detrimental influence on society generally. The Human Rights Act will almost certainly not assist Mr. C directly in circumstances where he is dismissed for expressing those views since a Court or tribunal will probably conclude that the relationship between him and the bank is governed exclusively by his contract of employment. Also that there is no sufficient public law element to warrant rebutting the presumption that the relations between the two are a matter of private law rather than public law.
14. Nevertheless, as I have said, there may be ways in which even private sector employees will indirectly be able to avail themselves of the Convention.
15. There are two methods whereby this can be achieved. Firstly, by the Courts and Tribunals developing the contract of employment so that it becomes Convention compliant. Secondly, requiring the Courts and tribunals to interpret provisions contained in Manx employment protection legislation in accordance with the Convention. Public sector employees will of course also be able to take advantage of these arguments.
Developing the Contract of Employment - Trust and Confidence Obligations
16. I am sure you are familiar with the term which is implied into every contact of employment that the employer shall not:-
“without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.”
17. Let us look at a practical example of how that term might be developed so as to comply with the Convention.
18. Mr. X has worked for his private sector employer in the Isle of Man for a number of years. The employer then decides that he should be posted to the Channel Islands for 5 years. His contract of employment contains a mobility clause which permits such a posting. He resists the decision on the basis that it will interfere with his right to family life under article 8. His children are settled at local schools and will be taking their GSCEs and A levels in the next year or so. His wife has a part time job with a local employer and is most unwilling to move to Jersey. The employer however insists that Mr. X should take up his post in Jersey, and as a result he resigns claiming constructive unfair dismissal on the basis that the employer has breached the implied term as to trust and confidence.
19. An employment tribunal (being itself a “public authority”) in determining the question of whether the employer had fundamentally breached the contract of employment, thus entitling the employee to resign, must take into account Article 8 in coming to its conclusion.
20. Another example might be where a private sector employer discovers that one of its employees is stealing goods from its storeroom which doubles up as the canteen. However the identity of the thief is unknown. In order to deal with the matter the employer secretly installs video surveillance cameras in the storeroom for the purposes of discovering the thief. The cameras show one particular employee hiding goods in her pockets and she is dismissed. However a fellow employee subsequently discovers that she too has been subject to secret video surveillance and resigns claiming constructive dismissal on the basis that her employer has breached the implied obligation to maintain trust and confidence by acting incompatibly with her Article 8 right to privacy.
21. In these circumstances again the Tribunal is bound to take Article 8 into account, but it is unlikely that a Tribunal will hold that there has been a breach of the implied obligation to maintain trust and confidence because ultimately the employer has a justification for his actions which will probably be regarded as proportionate to the achievement of a legitimate business aim of rooting out criminal activity.
Construing Employment Protection Legislation so as to Comply with the Convention
22. The second (although similar) indirect method whereby a private (and public) sector employee is able to rely on the Act is by means of the obligation on tribunals and Courts to interpret all legislation so that it is, so far as possible, compatible with the Convention and to take into account judgments of the ECHR, so far as relevant and so far as it is possible to do so.
23. Courts and tribunals will be acting unlawfully if they act incompatibly with the Convention, except where they are compelled to do so by legislation which cannot be interpreted so as to render it compatible with Convention.
24. As I am sure you all know, in essence there are two ways in which an employee can argue that dismissal was unfair for the purposes of the Employment Act 1991. Firstly that the procedures adopted by the employer for the purposes of determining whether or not there should be a dismissal were unfair. Secondly that the dismissal was substantively unfair because there was a dismissal for an unfair reason or because the employer acted unreasonably in treating the reason given as a sufficient reason for the dismissal. (See S.44(3) EA 1991)
25. When assessing the fairness of a decision to dismiss, the tribunal is required to take into account the reasonableness or unreasonableness of the employer’s decision, in all the circumstances of the case. It is clear that, post implementation of the Human Rights Act 2001, a particularly important circumstance will be whether the employer’s decision involved a violation of the employee’s Convention rights. Tribunals have a considerable degree of discretion in unfair dismissal and discrimination claims and when exercising such a discretion they must take into account the Convention and the Strasbourg case law.
26. A good example of the practical effect of the Convention in unfair dismissal cases is the case of X v Y (2004) a decision of the Court of Appeal. In this case an employee employed by a non public authority was held to have been fairly dismissed from a job working with youth offenders after he had been cautioned for gross indecency with another man in a public toilet. The applicant’s conduct was held not to have taken place in his private life since it happened in a place to which the public had access (he was seeking to rely on Article 8 - right to respect private and family life). Further it was a criminal offence that is normally of legitimate concern to the public and it lead to a caution for the offence. It was held that this was relevant to the applicant’s employment and should have been disclosed by him to his employer. The Court also decided that if a dismissal was for the applicant’s private conduct and was in breach of Article 8, that would be relevant to the determination of an unfair dismissal claim whether or not the employer was a public authority. This is because under Section 3 of the Act an employment tribunal has to read the Employment Act 1991 in a way compatible with Convention rights. The employment tribunal is itself a public authority for these purposes. As the Court pointed out, there is a “public authority aspect” to the determination of every unfair dismissal case. This decision of the Court of Appeal in X v Y contains an extremely useful (although rather complex) analysis of the way in which the Convention impacts on unfair dismissal cases. It also contains very valuable guidance for employment tribunals as to how they should deal with human rights issues which are raised before them.
27. The judgment also states interestingly that in addition to the right of the employee under the relevant Convention Article, fellow employees and members of the public also have rights and freedoms under the Convention which must be taken into account in dealing with what can often be complex employment relationships. With rights come responsibilities.
28. It is also interesting to note that the judgment states that in many cases it is difficult to draw, let alone justify, a distinction between public authority and private employers. In the case of a basic employment right such as the right not to be unfairly dismissed, it is stated that there would normally be no sensible grounds for treating public and private employees differently, especially when there is such widespread contracting out by public authorities to private contractors. (The Court went on to say that the effect of Section 6 of the HRA in the case of a claim against a private employer is “to reinforce the extremely strong interpretative obligation imposed on the employment tribunal by Section 3 of the HRA”.)
Geometry!
I have mentioned above that the effect of the ECHR on disputes between those in the private sector is sometimes described “as horizontal”. The Court in X v Y puts it slightly differently. “The effect is more accurately described as oblique, rather than as directly or indirectly horizontal. By a process of interpretation the Article 8 right is blended with the law on unfair dismissal, but without creating new private law causes of action against private sector employers under the HRA or the employment legislation.”
Practical Effects of the Act in the UK
One has to say that in practice an employee is unlikely to derive a great deal of help from the Human Rights Act in the context of unfair dismissal or sex discrimination proceedings. It is likely that a claim that Convention rights have been breached will do little more than put a gloss on the employee’s claim. Put another way, it will only rarely be the case that placing reliance upon human rights arguments will enable an otherwise doomed unfair dismissal claim to succeed. A strong case will get home anyway. It is possible that borderline cases may be helped to success by the Act. The case of X v Y which I have just referred to tends to support this assessment.
Another reason why the Human Rights Act has had a far less significant impact on employment law in the UK than originally anticipated is that there has of course been a considerable increase in specific employment rights and there is simply no need to rely on the Convention. This is also increasingly the case in IOM - see the Employment Bill 2006 and associated regulations which provide for right to request flexible working/enhanced maternity rights and paternity rights (all Article 8 “family rights”) and right not to be dismissed on grounds of sexual orientation - all arguably “human rights” driven.
Specific Convention Articles
Let us then look at the specific Articles in the Convention which may have a particular impact on employment law.
Article 3
Unlikely to be of great relevance but there may be extreme cases of serious racial or other types of harassment which might be deemed to amount to “degrading treatment”
Article 4
Unlikely to be relevant as it relates to the prohibition of slavery and forced labour but foreign domestic servants whose right to remain in UK depends on retaining their current position.
Article 6
So far as procedural unfairness is concerned, it is unlikely that Article 6 (the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law) will have any direct effect on disciplinary procedures. It seems to be generally established that internal disciplinary hearings do not need to be Article 6 compliant, generally because those hearings do not finally determine the employee’s civil rights since there is generally the right of appeal or review to an employment tribunal which will (hopefully!) be Article 6 compliant. Having said that, current guidance on fair procedures in internal disciplinary hearings almost certainly in any event impose many of the requirements of Article 6. (Compare internal hearings by professional bodies which could result in the removal of a person’s professional status; eg medical profession - Article 6 probably applies)
- Strangely, Article 6 has been held not to apply to disputes relating to the employment of public servants, although in Pellegrin v France (2001) the category of excluded servants was held to be confined to those such as the armed forces and police
Article 8
Article 8 (right to respect for private and family life) has already been touched on. It is clear that security measures at work fall within the scope of Article 8 and the two best known cases dealing with this are those of Niemitz v Germany (1993) which was concerned with the search of a lawyer’s office and Halford v UK (1997) which dealt with the tapping of telephone calls at work.
We have already touched on the use of CCTV in monitoring employees at work but there is also the difficult question of interfering with e-mails at work. This may prima facie breach the right to respect for correspondence under Article 8. In some cases however such interference may be justified on the basis that it is necessary to protect the rights of others (either the employer - to prevent employees wasting time at work, or to check that employees are not acting against the employer’s interests by working for a competitor - or fellow employees, by monitoring to ensure that employees are not sending offensive e-mails which might amount to harassment). Questions to be posed are - is a legitimate interest of the employer being protected? Can the object be achieved in a less intrusive way? Is it necessary to read the e-mails or just monitor the traffic?
Dress codes are another area of controversy. You may have employees who wish to express their personality by wearing nose rings or exhibiting colourful tattoos. Each case will no doubt have to be judged on its facts and the employee may be able to argue that he or she has a right to express herself and that the employer is acting disproportionately in banning such expressions. Analogies may be drawn with the Article 9 case of Begum v Denbigh High School (2006) where the House of Lords held that a school’s refusal to allow a pupil to wear a jilbab at school did not interfere with her right to manifest her religion. Also Sahin v Turkey (2005) - ban on wearing Islamic headscarf in universities not a breach of Article 9 or the right to education.
The European Court held in the case of Kara v UK (1998) that the dismissal by the London Borough of Hackney of a bisexual male transvestite employed as a careers advisor who went to work in female clothing such as leggings, tights, halter neck tops and a dress was in accordance with law and a proportionate measure in pursuit of a lawful aim.
The Employment (Sex Discrimination) Act 2000 may be relevant (and more pertinent) if dress codes differentiate unjustifiably between men and women.
As mentioned above, the right to family life may be breached where the employer exercises a mobility clause in a way that prevents the employee from living with or in the near vicinity to his family and also there may be an argument that family life may also be breached where the employer requires its employees to work very long hours.
Article 9
So far as Article 9 is concerned (freedom of thought, conscience and religion), the leading case is Ahmad v UK (1982) where a Muslim school teacher wanted to pray in his mosque for 45 minutes every Friday. The European Court of Human Rights held that the employer’s refusal to allow him time to do this did not infringe Article 9 since the employee had voluntarily accepted a teaching post which prevented his attendance at prayers (and he had also not complained, or requested time off during his first 6 years at work).
Article 9 was recently considered by the English Court of Appeal in the case of Copsey v WWB Devon Clays Limited (July 2005) which reaffirmed that an employee who is obliged to work on a Sunday under his contract of employment, but refuses to do so because of his Christian beliefs, is free to resign and in those circumstances there is no breach of Article 9.
Article 10
So far as Article 10 is concerned (freedom of expression) the leading case is that of Vogt v Germany (1996) where a teacher was dismissed because of active membership of the German Communist Party. The dismissal was held to infringe her Article 10 rights. However some types of employment may require some degree of restriction of freedom of speech. Thus in Morissens v Belgium (1998) it was said that by entering the civil service (as a teacher) the applicant accepted certain restrictions on the exercise of her freedom of expression, as being inherent in her duties. It is likely that the Courts will hold that those who work for the police or the security services must necessarily accept a limitation on their Article 10 rights. To take another extreme example, a teacher who was an active member of a group which was trying to advance the rights of convicted paedophiles in society would probably find it difficult to found a claim that her dismissal for membership of this particular group constituted a breach of her Article 10 rights.
Similarly, if an employee were to criticise his employer in a highly public manner (for example in the press or on television) this would reasonably attract disciplinary action with the result that there would unlikely to be any breach of Article 10.
Article 11
I will briefly consider Article 11 which is the right to freedom of assembly and association.
As regards the closed shop, the case of Young, James and Webster v UK in 1981 established that the freedom to associate included, to some extent, the freedom not to associate. This was a case where 3 British Rail employees were dismissed pursuant to a closed shop agreement and the Courts narrowly found in favour of the sacked employees.
It should be noted that there is no general right to strike guaranteed by the convention.
See also CCSU v UK (1998) - ban on unions at GCHQ. State has wide discretion in matters of national security.
Article 14
The final Article to consider is Article 14 (discrimination). It must be emphasised that this does not prohibit discrimination by public bodies but prohibits public bodies from discriminating when complying with other convention requirements. It is thus dependent on the other rights. An example is a 1985 decision where the applicants were lawfully and permanently settled in the UK. They complained that their husbands were refused permission to join them. There was no breach of Article 8 (although the allegation came within the ambit of Article 8) but there was a breach of Article 14 in conjunction with Article 8. It may have been legitimate to restrict admission of non national spouses to the UK but not legitimate to distinguish between non national spouses of males (who were permitted entry) and non national spouses of females (who were not).
Employment Tribunals
Finally, so far as the employment tribunal itself is concerned, this (unlike internal disciplinary procedures) must comply without qualification with the provisions of Article 6. Now that we have the Tribunals Act 2006 coming into law, there should be no difficulty in the panel being “independent and impartial” of the Government. Also there should be no difficulty with the hearing being held within a reasonable time and the hearing being fair and held in public. But what about an employee who is subject to lengthy suspension and drawn-out internal procedures before the matter comes to the Tribunal. An example of this is the case of Darrell v UK (1994) where a hospital consultant suffered a nine year delay between his dismissal and the final disposal of his case. In those circumstances the UK was found to be in breach of Article 6.
A further problem may relate to the increasing complexity of employment law and the non availability of legal aid in the Isle of Man for employment tribunal representation. An analogy could be drawn with the famous McDonalds litigation where the UK was held to be in breach of Article 6 by reason of its failure to make legal aid available to the litigants in person in their defence of the defamation claim brought by the McDonalds company. The concept of “equality of arms” may well cause the law to have to be altered to extend legal aid to employment tribunals. Remember that the Isle of Man has no employment appeal tribunal and therefore the employment tribunal represents essentially the only chance for an employee to obtain redress. There is a very limited right of appeal to the High Court in respect of points of law only. This is rarely used.
In the Isle of Man we are unlikely to have a situation such as that in the case of Stansbury v Datapulse Plc (2003) where an employee was found not to have been given a fair hearing when one of the lay members of an employment tribunal appeared to have been drunk and fell asleep during the hearing.
If all else fails - Strasbourg is still an option!
A.T.K. Corlett
November 2006
(The above is based on a talk given by Andrew Corlett to the Isle of Man branch of the Chartered Institute of Personnel and Development on 17th October 2006).
