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Human Rights
by Jude Jackson

Pride events 2003

Employment Rights

I attended the Human Rights Law course at the TUC National Education Centre at Crouch End, London, between 14 -16 May 2003. There were a total of seven union delegates, representing Unison, NAEIAC, FBU, NASUWT and myself from PCS. The course tutor, Andrea Chute, is a barrister in Employment Law with Michael Mansfield’s Chambers, and she also takes trade union courses on Employment Law and Employment Tribunals. The course consisted of a mixture of lectures, discussion and group exercises.

Andrea opened the course by quickly dispelling any illusions that the Human Rights Act 1998 may have had much impact on employment law since it came into force on 2nd October 2000. Putting the Act in it’s historical context, emerging out of post – Second World War Europe, the European Convention of Human Rights – an international human rights treaty adopted under the auspices of the Council of Europe to try to prevent a recurrence of the Nazi regime (and was also, I suspect, an expression of collective guilt) – was drawn up in 1950 and came into force in 1953.

Britain had played a significant part in the drafting of the Convention, and ratified it in 1950. Yet it was not until 1966 that the British Government recognised the jurisdiction of the European Court of Human Rights, and allowed individuals the right to take cases to the Strasbourg courts. And it was not until 1998 that parts of the Convention (not all) were incorporated into British Law as the Human Rights Act – this coming into effect, as I mentioned earlier, in October 2000.

What to make of the delay? Well, it’s almost perverse. The introduction of the Human Rights Act is rooted in the changed political situation of the past 15 – 20 years, during which time we have seen the demise of the collective struggle. Human Rights focus on the individual and are based on a liberal ideology. There has been an increase in an individualistic approach to problems in the workplace with people turning to legal action for redress, whereas previously the trade union would have addressed the problem. Modern day society has seen collectivism as an approach abandoned in politics and ideology. The fight for socialism has melted away in the face of renascent capitalism and Thatcherism. The conditions for an individualistic outlook have been deliberately encouraged.

That said, in some circumstances, the HRA does create new rights and protections for individuals and can be used in certain instances in the workplace to give some protection for employees. However, it should be borne in mind that it also potentially enhances the powers of an un-elected and unaccountable judiciary against Parliament and the Executive. Human rights invariably have a political content such as the right to life, and freedom of expression. And so we should be concerned that the judiciary, given its composition and outlook, will be involved in their interpretation and development. In summing up her overview of the Act, Andrea emphasised that legal action generally is no substitute for collective action and effective trade union organisation.

Stripped of all its grandness and false promise, then, how can the trade union movement use the Human Rights Act?

The Act provides a cause of action against the state – not against private individuals. Claims may be brought against public authorities, or hybrid bodies. A public authority is defined as including a court or tribunal, and any person whose functions are of a public nature. Examples of hybrid bodies include Railtrack, the BBC and the Press Complaints Commission. Purely private bodies, with no functions of a public nature, are not caught by the obligation to act in compliance with the HRA.

Public sector unions are therefore in a good position to make use of the HRA in negotiating and campaigning situations, in addition to advising and representing individual members.

There is also the general obligation on courts and tribunals to interpret all legislation in a way which is compatible with Convention rights – employment protection laws must now be read in light of human rights principles. And as courts and tribunals are public authorities under the HRA they have a duty to act compatibly with Convention rights when developing the common law.

The main areas where the HRA could be invoked in the workplace are in disciplinary and grievance procedures, as well as employment tribunal procedures, under Article 6(1), which guarantees the right to a fair trial. In particular, there is a right to an independent and impartial tribunal; an adversarial hearing; disclosure of documents; reasons for the decision; and for decisions to be made within a reasonable period. Article 11(1) – Freedom of assembly - sets out the right of workers to form and join trade unions for the protection of their interests. Article 8 - Right to respect for private and family life – privacy extends to the workplace, and private life includes a right to respect for personal identity, including sexual identity, moral or physical integrity, sexual activities and personal relations. Article 8 will also cover employers monitoring correspondence including letters, email, faxes and telephone calls. However, security checks at work do not of themselves interfere with respect for private life. Article 9 - Freedom of thought, conscience and religion – protects the right to hold religious beliefs. The right to hold religious beliefs is absolute, but the right to manifest them is subject to general restrictions. Article 10 – Freedom of expression – expression covers words, pictures, images and actions intended to express an idea or present information. The expression may relate to any subject, from opinions on politics, commerce and the arts, although these subjects do not all invite the same degree of protection. In the case of public authority employers, the HRA creates a new right of action for whistleblowers who are subjected to detriment by their employer. Freedom of expression can include the right for a person to express his or her ideas through the way in which he or she dresses. Article 14 – Prohibition of discrimination – the Convention does not contain a general right not to be discriminated against in the course of employment. What it does have, however, is a right not to be discriminated against in the enjoyment of Convention rights.

Andrea pointed out that much of the above is covered by domestic law, such as sex discrimination and race discrimination, but that the HRA could be invoked as an ‘add on’ to strengthen a case.

The course was very intense and fast moving, and covered a lot of ground. I learned much from the other delegates, some of whom had law degrees, and others who were full time officials. One delegate was a wing member on an Employment Tribunal, so was able to bring in some useful views and perspectives. The most important lesson for me though, was that although it is important to know how to use the law to defend rights, it is also important to know it’s origins and limitations and that legislation is no substitute for collectivism and good union organisation.

Jude Jackson
Proud East Midlands Regional Representative

4 June 2003