The Human Rights Act 1998 - the introduction to UK law of the European Convention on Human Rights

The Human Rights Act 1998

Zephanie Allen looks at the introduction to UK law of the European Convention on Human Rights

Since the European Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention') was first ratified by the Government in March 1951, individuals have only been able to enforce their rights by taking cases to the European Human Rights Commission and Court in Strasbourg ('the Court of Human Rights'), which involves substantial expense (an average of £30,000) and delay (an average of 5 years after all domestic remedies have been exhausted).

The Government made a manifesto pledge to change this by introducing legislation to incorporate the Convention into national law so that individuals could enforce their rights in the domestic courts. The Human Rights Act 1998, which received Royal Assent on 9th November 1998, incorporates the majority of the Articles of the Convention. However, it is anticipated that the Act will not come into force until at least 2000.

The Act enforces the Convention by making it unlawful for a public authority to act in a way which is incompatible with a Convention right. If the contravention of the Convention is not by a public authority, as defined in the Act, the Act will not apply.

Public authority is defined widely in the Act to include any court and/or tribunal and any organisations whose functions are of a public nature, but specifically excludes any private acts done by such organisations. A private act is likely to include a contract of employment between a public sector employer and an individual. Employment contracts in both the private sector and public sector are therefore likely to fall outside the Act.

As a consequence, the main effect of the Act on employment will be the way in which employment tribunals and/or courts interpret the Act. As public authorities, they are required to act in accordance with the Convention. This requires them to interpret the relevant legislation and also common law concepts in a way which is compatible with an individual's rights under the Convention and, in so doing, to take into account earlier decisions of the Court of Human Rights. In appropriate circumstances, therefore, a court and/or tribunal will have to look at what the Lord Chancellor has called 'the morality of the conduct and not simply its compliance with the bare letter of the law'.

Four articles in particular would appear to have an impact on potential employment claims. In all 4 cases, the Articles are subject to certain exceptions where 'interference by a public authority ... is in accordance with the law and is necessary in a democratic society' in order to achieve set objectives, such as the protection of the rights and freedoms of others.

Article 8 - Right to respect for private and family rights

This Article provides that 'everyone has the right to respect for his private and family life, his home and his correspondence'.

The right to respect for private life under this Article may possibly be used to protect employees from discrimination as a result of their refusal to conform to conventional dress codes and lifestyles. It may also have an impact on any monitoring of employees carried out by employers and/or testing for drugs. Testing may need to be undertaken only in accordance with an express contractual right incorporated into the individual's contract of employment.

Articles 9 - Freedom of thought, conscience and religion

Under this Article, 'everyone has the right to freedom of thought, conscience and religion'.

Article 10 - Freedom of expression

Caselaw on this Article in the Court of Human Rights has established that dismissal by employers for political beliefs held by an employee constitutes a breach of this Article. Consideration of this Article would also be necessary by a tribunal hearing claims brought in the context of a whistleblower who has been subsequently dismissed by his employer. However, in this context, the provisions of the Public Interest Disclosure Act 1998 could potentially have more impact.

Article 11 - Freedom of assembly and association

This Article includes 'the right to freedom of peaceful assembly and to freedom of association with others including to form and join trade unions for the protection of [the individual's] interests'.

This Article has been held only to protect the right of freedom to associate and not to provide a right for the union to bargain, strike and/or to be consulted in respect of its members. However, there is always the possibility that issues relating to recognition may be raised under this Article, especially where one union is recognised in preference to another.

There is also an Article in the Convention which prohibits discrimination but this can only be invoked if the individual can first show a violation of one of the other rights under the Convention.

In preparation for the implementation of the Act, employers need to consider the impact of rights granted under the Convention in their dealings with employees and, in particular, by introducing an ethical code of conduct for all employees to follow and by amending the provisions of the contracts of employment to ensure that all potential areas of conflict are resolved by express provisions.