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Rights of Workers under the European Convention of Human Rights
The European Convention on Human Rights sets out a number of fundamental rights to which should be guaranteed. (see the chapter on the Human Rights Act 1998 for an outline of the Convention Rights).
Some of these rights may be relevant in the context of employment in a number of ways:
If your employer is a public authority - The Human Rights Act 1998 imposes a duty on public authorities to act compatibly with the rights in the European Convention on Human Rights (‘the Convention’). So if you work for a ‘public authority’ for the purpose of the Human Rights Act, your employer will have to respect your Convention rights and you may bring a claim directly against your employer for breach of human rights under the Human Rights Act.
When bringing a claim before a Tribunal or Court – Courts and Tribunals are ‘public authorities’ and must therefore act compatibly with the Convention. If you bring a claim against your employer, the court or tribunal must take account of your Convention rights when reaching its decision.
In addition, the Human Rights Act requires that all statutes must be read ‘so far as it is possible to do so’ in a way which is compatible with convention rights. So for instance, if a tribunal is considering whether your dismissal is fair under the Employment Rights Act 1996, it must interpret the test of fairness in a way which complies as far as possible with your Convention rights.
In disciplinary hearings -
Convention Rights
The rights that may be relevant in the context of employment include:
Article 6
Article 6 protects your right to a fair hearing. If you are subject of a disciplinary hearing where the outcome could affect your ability to carry out your profession or trade, for example a disciplinary hearing by the General Medical Council or the Law Society, then your right to a fair hearing, guaranteed by Article 6, is likely to be engaged. However, most internal disciplinary hearings, which may result in your dismissal but will not result in you being prevented from continuing to work in that field, will not engage Article 6.
If you are dismissed and bring a claim for unfair dismissal in the Employment Tribunal, then you are entitled to a fair hearing under Article 6. The Employment Tribunal Rules generally meet the requirements of Article 6.
Article 8
Article 8 protects your right to respect for your privacy and your correspondence – monitoring of emails, telephones conversations and internet usage, the use of intrusive CCTV footage or vehicle tracking devices, or subjecting you to searches or to drug or alcohol testing, may interfere with your right to respect for your private life. However, it is important to note that most of what you do at work will not be considered part of your private life – the question will be whether in the circumstances you should have a reasonable expectation of privacy. If there is an interference, this does not necessary breach your Article 8 rights, as this right is not absolute, and interferences with your privacy are permitted if they are justified and proportionate.
See also THE RIGHT TO PRIVACY
Article 9
Article 9 (Freedom of Thought, Conscience or Religion) provides an absolute right to hold beliefs, and a qualfied right to manifest those beliefs. So a rule prohibiting a Christian from wearing a cross, or a refusal to allow a muslim time off for prayer may interfere with the right to maisfest their religious belief, but these restrictions owill not be unlawful if they are justified and proportionate.
There is specific legislation prohibiting discrimination on the grounds of religion in employment, and this is often more effective than relying on human rights law, as it will cover both private and public employers.
See also THE RIGHT TO RECEIVE EQUAL TREATMENT
Article 10
Article 10 guarantees freedom of expression. This right is severely limited because of the competing rights between a worker’s freedom of expression and the employer’s right to manage the workplace and to protect confidentiality and trade secrets. It is also clear that under the Convention, your freedom of expression may be restricted by your contract of employment. To this extent, the rights to expression can be bargained away by the worker upon agreeing contractual terms.
The scope of the freedom of expression depends upon a number of factors, including the method and manner in which you express opinion or criticism, as well as the nature of the opinion. Courts are likely to consider whether the allegations are supported by evidence, and also whether the matters have been raised and addressed internally.
See also THE RIGHT TO FREE EXPRESSION and WHISTLEBLOWERS
Article 11
Article 11 gives everyone the right to freedom of assembly and to
freedom of association with others, including the right to form and join trade unions. The ECHR has held that the right to join a trade union includes the right not to be forced to join a trade union on the basis that the freedom to associate also includes the freedom not to associate. This right is subject to the usual restrictions. In particular, Article 11 permits the impositions 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.
Trade unions may also bring actions on behalf of members who they can identify as being directly affected by the alleged human rights violation, provided that the union can demonstrate that it has authority to act on behalf of its members.
Some of these rights may be relevant in the context of employment in a number of ways:
If your employer is a public authority - The Human Rights Act 1998 imposes a duty on public authorities to act compatibly with the rights in the European Convention on Human Rights (‘the Convention’). So if you work for a ‘public authority’ for the purpose of the Human Rights Act, your employer will have to respect your Convention rights and you may bring a claim directly against your employer for breach of human rights under the Human Rights Act.
When bringing a claim before a Tribunal or Court – Courts and Tribunals are ‘public authorities’ and must therefore act compatibly with the Convention. If you bring a claim against your employer, the court or tribunal must take account of your Convention rights when reaching its decision.
In addition, the Human Rights Act requires that all statutes must be read ‘so far as it is possible to do so’ in a way which is compatible with convention rights. So for instance, if a tribunal is considering whether your dismissal is fair under the Employment Rights Act 1996, it must interpret the test of fairness in a way which complies as far as possible with your Convention rights.
In disciplinary hearings -
Convention Rights
The rights that may be relevant in the context of employment include:
Article 6
Article 6 protects your right to a fair hearing. If you are subject of a disciplinary hearing where the outcome could affect your ability to carry out your profession or trade, for example a disciplinary hearing by the General Medical Council or the Law Society, then your right to a fair hearing, guaranteed by Article 6, is likely to be engaged. However, most internal disciplinary hearings, which may result in your dismissal but will not result in you being prevented from continuing to work in that field, will not engage Article 6.
If you are dismissed and bring a claim for unfair dismissal in the Employment Tribunal, then you are entitled to a fair hearing under Article 6. The Employment Tribunal Rules generally meet the requirements of Article 6.
Article 8
Article 8 protects your right to respect for your privacy and your correspondence – monitoring of emails, telephones conversations and internet usage, the use of intrusive CCTV footage or vehicle tracking devices, or subjecting you to searches or to drug or alcohol testing, may interfere with your right to respect for your private life. However, it is important to note that most of what you do at work will not be considered part of your private life – the question will be whether in the circumstances you should have a reasonable expectation of privacy. If there is an interference, this does not necessary breach your Article 8 rights, as this right is not absolute, and interferences with your privacy are permitted if they are justified and proportionate.
See also THE RIGHT TO PRIVACY
Article 9
Article 9 (Freedom of Thought, Conscience or Religion) provides an absolute right to hold beliefs, and a qualfied right to manifest those beliefs. So a rule prohibiting a Christian from wearing a cross, or a refusal to allow a muslim time off for prayer may interfere with the right to maisfest their religious belief, but these restrictions owill not be unlawful if they are justified and proportionate.
There is specific legislation prohibiting discrimination on the grounds of religion in employment, and this is often more effective than relying on human rights law, as it will cover both private and public employers.
See also THE RIGHT TO RECEIVE EQUAL TREATMENT
Article 10
Article 10 guarantees freedom of expression. This right is severely limited because of the competing rights between a worker’s freedom of expression and the employer’s right to manage the workplace and to protect confidentiality and trade secrets. It is also clear that under the Convention, your freedom of expression may be restricted by your contract of employment. To this extent, the rights to expression can be bargained away by the worker upon agreeing contractual terms.
The scope of the freedom of expression depends upon a number of factors, including the method and manner in which you express opinion or criticism, as well as the nature of the opinion. Courts are likely to consider whether the allegations are supported by evidence, and also whether the matters have been raised and addressed internally.
See also THE RIGHT TO FREE EXPRESSION and WHISTLEBLOWERS
Article 11
Article 11 gives everyone the right to freedom of assembly and to
freedom of association with others, including the right to form and join trade unions. The ECHR has held that the right to join a trade union includes the right not to be forced to join a trade union on the basis that the freedom to associate also includes the freedom not to associate. This right is subject to the usual restrictions. In particular, Article 11 permits the impositions 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.
Trade unions may also bring actions on behalf of members who they can identify as being directly affected by the alleged human rights violation, provided that the union can demonstrate that it has authority to act on behalf of its members.
