If you're a private employer with no public function you may be wondering what the big deal is about the Human Rights Act. Well, unless the employer is a public authority or carries out functions of a public nature, employees cannot bring a direct claim for breach of their rights. But where direct claims can be made, compensation will be whatever is just and equitable.
Employment tribunals must have regard to the act whenever they consider a case. Accordingly, the act is relevant
to all unfair dismissal, discrimination and many other cases that a company could be involved in. When looking at whether a company's actions are reasonable the tribunal will want to consider if it has breached the human rights of the employee. Solicitors acting for employees are sure to rely on the act at every opportunity.
If a company has breached the act it will be difficult to argue that its conduct was reasonable.
The key rights are:
Article 6 – right to a fair hearing by an independent and impartial tribunal. This should be business as usual. Reasonableness is still the essential feature. Disciplinary procedures will already be designed to ensure that nobody tied in to the issues of a case is involved in the disciplinary or appeal. Employers need to make sure that standards do not slip. Tribunals are likely to be less sympathetic to procedural defects.
Article 8 – right to respect for private and family life, home and correspondence. This covers many important topical areas such as CCTV, email, internet use, monitoring telephone calls and opening correspondence. At first glance Article 8 is potentially infringed whenever a private email is read or a letter opened.
The key is to ensure that comprehensive policies are brought to the attention of employees that detail monitoring procedures. The disciplinary sanctions for breach of policy must be made clear. Provided employees know in advance you should be able to justify monitoring. This is on the basis that it is necessary to protect morals, prevent crime and protect the rights of others (which will include employers' rights).
Article 9 – right to freedom of thought, conscience and religion. The real impact here is likely to be in situations where an employee's religious beliefs bring him into conflict with his duties to his employer at work.
Before the act, if an employer could show that the employee's religious practice disrupted the em-ployer's operation, then there was a good chance of justifying dismissal. The employee could not bring a discrimination claim based solely on religion if there was no racial element. We will have to wait and see how similar cases are affected by the act. If there really is no way round the problem companies will be expected to be able to justify their position to achieve a “reasonable” decision. But have they explored all avenues?
Article 10 – freedom of expression. This will cover foul, offensive, or defamatory speech or written material and dress codes.
In cases of foul and offensive language or material, companies should be able to point to the protection of morals or the protection for the rights and freedom of others in justifying any policy or taking action against employees.
The protection of health or public safety may provide justification for dress codes. Employers are likely to have to demonstrate that the code is necessary rather than just desirable. Although it should remain acceptable to have a dress code that is simply aimed at promoting the brand this may have to be relaxed in certain instances.
Article 11 – right to freedom of peaceful assembly and to freedom of association with others. This will be relevant to trade union activities and there is overlap with Article 9. This should again be business as usual. Protection already exists relating to trade-union membership and it is not expected that Article 11 will change things dramatically.
What next for employers?
Policies for monitoring email and internet use are now generally in place. If companies do not have them they need them now. They will need to be regularly reviewed as case law develops under the act. Government regulations in this area are expected to be in force before 2001.
There is no need to panic. The conscientious employer will have reviewed and up-dated policies to keep up with the changing legislation of the last few years. They need to keep on applying up-to-date policies in disciplinary and grievance matters. But they also need to think laterally, like will the act have a bearing on the particular case before me? Most of the time the answer will be yes.
Provided companies act reasonably they will not fall foul of the tribunals. They have a business to run and their employees have duties to them. Employees are not allowed to do as they please merely by protesting “human rights” every time.
