Home

About ILS

Journal

Diary

Evening Meeting Programme

Organisation

Links

Forum

PREVIOUS SPEAKERS:
Professor Gillian Morris,
Professor of Law, Brunel University
Barrister, 11, King's Bench Walk Chambers

Back to list of speakers

Title: The Human Rights Act 1998 and employment law: Some controversial issues

26 August 2000

1. The ECHR and Domestic Law

The Long Title to the Human Rights Act ('HRA') 1998 states that one of its purposes is to give 'further effect' to rights and freedoms guaranteed by the European Convention on Human Rights (ECHR). it does not, strictly speaking, incorporate those rights into domestic law. Rather it establishes a statutory framework which determines the legal contexts in which 'the Convention rights' (defined HRA. s1(1)) will be relevant. There are three such contexts, all of which have important implications for employment law.

(i) HRA 1998, s 3(1): general obligation to read and give effect to primary and subordinate legislation in a way which is compatible with the Convention rights so far as it is possible to do so. Previous authorities on the interpretation of legislation can no longer be regarded as binding where that interpretation conflicts with a Convention right, such as the right to freedom of association. The obligation will be particularly relevant to employment lawyers in relation to:

1. bodies where the power to employ is derived from statute (local authorities and NHS Trusts, for example): the scope of statutory discretion will now be interpreted as subject to the Convention rights;
2. the interpretation of the concept of constructive dismissal: an employer's conduct which breaches a Convention right is likely to be regarded as breaching trust and confidence. Note in this context the potential significance of Hogg v Dover College [1990] ICR 39, EAT and Alcan Extrusions v Yates [1996] IRLR 327, EAT;
3. the determination of whether a dismissal is unfair: both in deciding whether it is for 'some other substantial reason', where this is relied upon, and whether the employer has acted reasonably in the circumstances.

(ii) Implications for the common law: HRA 1998, ss 6(1), 6(3)(a). The employer's managerial prerogative and the corresponding duty on employees to obey lawful and reasonable orders. Relevance for the exercise of judicial discretion, for example in deciding whether an injunction should be granted. (See HRA 1998, s 12 for specific provisions governing the exercise of the right to freedom of expression.)

(iii) Direct or collateral challenge against public authorities: HRA 1998, ss 6, 7. It is unlawful for a 'public authority' to act in a way which is incompatible with a Convention right unless this is required by legislation. A 'victim' who claims that a public authority has acted (or proposes to act) in a manner incompatible with a Convention right may bring proceedings against the authority in an 'appropriate court or tribunal', or rely on the Convention right(s) concerned in any legal proceedings: s 7(1). The concept of a 'public authority'. Rights Brought Home (Cm 3792, 1997, para 2.2): central government, local government, the police, immigration officers and prisons clearly public authorities. A 'public authority' includes 'any person certain of whose functions are functions of a public nature': HRA 1998, s 6(3)(b)). However, a person is not a public authority by virtue only of this provision 'if the nature of the act is private: s 6(5). There are, therefore, two categories of public authorities:

1. 'pure' public authorities, all of whose acts will be susceptible to challenge even if they occur in the context of relationships traditionally regarded as private for the purposes of judicial review.



2. bodies with mixed functions, where it will be necessary to decide whether the act in question lies within the public or the private realm. Standard examples of such bodies are privatised prisons, contractors performing services for other areas of central government, and the privatised public utilities. Position of NHS Trusts?

Most commentators have assumed that employment-related actions would be classified as private in nature, on the basis of authorities relating to judicial review. This assumption can be challenged on three grounds:

1. the policy arguments which underlie the judicial review authorities on the dividing line between public and private acts, such as the provision of alternative remedies in the 'private' sphere, are not applicable in this context (and the dividing-line has, in any case, been removed for 'pure' public authorities);
2. even on the basis of the case law relating to judicial review, many cases involving alleged violations of Convention rights would fall within the 'public' realm because, for example, of the generalised impact of the act in question, its 'public element' or its statutory underpinning (see McLaren v The Home Office [1990] IRLR 338, Woolf LJ at 342; R v London Borough of Hammersmith and Fulham, ex parte NALGO [1991] IRLR 249, Nolan LJ at 256; R v British Coal Corporation and the Secretary of State for Trade and Industry, ex parte Vardy [1993] IRLR 104; R v CPS ex parte Hogg (1994) 6 Admin LR 778);
3. ECHR jurisprudence does not distinguish between the 'public' and the 'private' acts of the state, and the ECtHR has affirmed that the state cannot evade its own responsibilities by contracting out its functions to private sector bodies (Costello-Roberts v UK judgment of March 25, 1995 (1993) 19 EHRR 116; Van der Musselle v Belgium judgment of November 23, 1983 (1984) 6 EHRR 163, para 29). Although this begs the question of the boundaries of state functions, some services (eg. prisons) are clearly within this principle.

2. The Nature of an Employer's Acts for which Liability may Lie

To date, the European Court of Human Rights ('ECtHR') has distinguished between the treatment of those already in employment and candidates for public service posts. Dismissing or threatening to dismiss, suspending, reprimanding, or threatening disciplinary action have all been found to constitute an 'interference' with the exercise of a Convention right (Vogt v Germany judgment of September 25 1995, (1996) 21 EHRR 205, para 44; B v UK App No 10293/83, (1985) DR 41; Morissens v Belgium App No 11389, (1988) 56 DR 127; Young James and Webster v UK judgment of August 13 1981, (1982) 4 EHRR 38). However, denying employment or confirmation of employment has not been so regarded (Glasenapp v Germany judgment of August 28, 1986, (1987) 9 EHRR 25, para 53 and Kosiek v Germany judgment of August 28 1986, (1987) 9 EHRR 328, para 39). Smith and Grady v UK judgment of 27 September 1999, [1999] IRLR 734. The artificiality of this dividing-line is demonstrated by Wille v Liechtenstein, judgment of October 28, 1999. Cf the evolution of US jurisprudence: McAuliffe v Mayor of New Bedford 155 Mass. 216, Holmes J at 220; Adler v Board of Education 342 US 485 at 492 (1952); Perry v Sindermann (2972) 408 US 593 at 597; Rutan et al v Republican Party of Illinois (1990) 497 US 62: see further G.S. Morris, 'The European Convention on Human Rights and Employment: To Which Acts Does it Apply?' [1999] European Human Rights Law Review 496, 497-501; G.S. Morris and T.J. Archer, Collective Labour Law, paras 1.10 – 1.11.

Implications of Protocol 12 to the Convention in this context. Article 1(1):

Article 1(2): '[n]o one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph (1).'

3. The Relationship between Convention Rights and Contract

ECHR jurisprudence has not yet satisfactorily resolved the question whether acceptance of employment on terms which restrict the exercise of a right which the Convention guarantees precludes the worker later claiming that this restriction constitutes a violation of the right in question. There is authority from the ECtHR which suggests that Convention rights can be waived provided that such waiver is unequivocal (Neumeister v Austria judgment of May 7 1974, (1979-80) 1 EHRR 136, para 36) and has been obtained freely and without constraint (Deweer v Belgium judgment of February 27 1980 (1980) 2 EHRR 439). This would appear to support the argument that waiver clauses would preclude a subsequent challenge if workers have unambiguously and specifically assented to them. See also cases on freedom of religion discussed in 5, below.

Domestic employment legislation commonly provides that any agreement to contract out of statutory rights will be void (see, for example, the Employment Rights Act 1996, s 203). There are a number of grounds on which it may successfully be argued that an agreement to restrict the exercise of a Convention right will not generally prevent that restriction being challenged.

1. The requirement that the waiver should be entered into without constraint may be difficult to prove, and waiver by collective agreement may not necessarily be conclusive: see Young, James and Webster v UK, above. Moreover there are ECtHR authorities which support the view that an act done against a background of compulsion may not estop an individual from claiming a violation: see Sigurjonnson v Iceland judgment of June 30 1993, (1993) 16 EHRR 462.
2. Not all rights are susceptible to waiver: the ECtHR has held that the right to liberty cannot be waived, and most decisions on waiver relate to Article 6; it may be argued that rights such as the right to respect for private life and freedom of expression are so fundamental to a democratic society that they cannot be waived by agreement, or only to a limited extent.
3. The decision of the European Commission in Rommelfanger v Germany App No 12242/86, (1989) 62 DR 151 suggests that restrictions on freedom of expression which strike at the substance of the freedom require justification, an analysis which is equally applicable to other articles.

It is safest, therefore, to consider carefully whether any restriction on the exercise of a Convention right can be justified, rather than relying solely on exclusion of the right by contract. (See further Morris and Archer, Collective Labour Law, para 1.12).

Justification and the contract of employment. Article 8(2):

See also Articles 9(2), 10(2), and 11(2). (Article 14 may be violated where unequal treatment has no 'objective and reasonable justification'.) For the purposes of Articles 8-11 a restriction must comply with three conditions: it must be 'prescribed by law (or, for Article 8, 'in accordance with the law'); pursue a legitimate aim; and the interference must be 'necessary in a democratic society'.

'Prescribed by law': as a minimum the restriction must have some basis in domestic law. Halford v UK judgment of June 25 1997, (1997) 24 EHRR 523. (See now the Regulation of Investigatory Powers Act 2000). It must also be adequately accessible, and be 'formulated with sufficient precision to enable the citizen to regulate his conduct'; the individual must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail': Sunday Times v UK judgment of April 26, 1979 (1979-80) 2 EHRR 245, para 49. However, provided that these tests are met 'unwritten law' is covered, and where a wide discretionary power is given, non-statutory guidance may set out the manner in which the discretion is to be exercised, provided that this is accessible to those concerned (Silver v UK judgment of March 25 1983, (1983) 5 EHRR 347). It has also been acknowledged that the level of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question, the field it is designed to cover, and the number and status of those to whom it is addressed (Vogt v Germany judgment of September 26 1995, (1996) 21 EHRR 205, para 48), but where a wide discretion is granted the ECtHR will investigate the extent to which there are adequate safeguards against abuse. Implications of these requirements for employment: specify clearly any restrictions on the exercise of a Convention right, either in the contract or in a supplementary document, and make the document available to all those to whom it applies. Where discretion for individual managers, ensure that there are clear principles to govern the exercise of that discretion.

Legitimate aim

'Necessary in a democratic society'. 'Necessary' has been said to imply a 'pressing social need', the interference must be 'proportionate to the legitimate aim pursued' and reasons adduced by the national authorities must be 'relevant and sufficient': Handyside v UK judgment of December 12 1976, (1979-80) 1 EHRR 737, paras 48-50. In the employment sphere, the requirement of a 'pressing social need' may be very difficult to justify if a restriction is not universally applied within an organisation, or its application is left to managerial discretion (see, for example, Vogt v Germany, above). Implications for management structures. The concept of proportionality requires that the restriction be no greater than necessary to achieve its objective. It may also invite inquiry as to whether that objective could be realised by means which do not constitute an interference with the right in question. Kara v UK App No 36528/97.

Note that the inhibition caused by the threat of being subject to a disciplinary penalty can itself constitute an interference with the right: Klass v Germany judgment of September 6 1978, (1979-80) 2 EHRR 214; Dudgeon v UK judgment of October 22 1981, (1982) 4 EHRR 149.

4. The discretion to be accorded to employers

In deciding whether a restriction is 'necessary in a democratic society' the state is accorded by the ECtHR a 'margin of appreciation': see Handyside, above, paras 48 and 49. The scope of the 'margin of appreciation' varies depending on the context; relevant factors include the importance of the right at stake, the particular purpose pursued by the state, and the extent to which there can be said to be a 'European consensus' relating to the matter: see, for example, Sunday Times v UK, above. It is generally recognised that the concept of the margin of appreciation is inappropriate for use in a domestic court. However, domestic courts will need to decide the scope of the discretion which they accord to the state or other body, such as an employer, which seeks to justify an interference with a Convention right. Relevant principles? Smith and Grady v UK, above; Kara v UK, above.

5. The application of Article 9: freedom of thought, conscience and religion

Article 9 provides that:

Ahmad v UK App 8160/78, (1982) 4 EHRR 126 (Court of Appeal at [1978] ICR 36); Konttinen v Finland App 24949/94, 87 DR 68; Stedman v UK App 29107/95, (1997) 23 EHRR CD 168 (but note the implications of Article 14). Kalac v Turkey judgment of July 1 1997, (1997) 27 EHRR 552: Article 9 does not protect every act motivated or inspired by a religion or belief. The case for a broader view.

Professor Gillian Morris

26 August 2000
©All rights reserved 2000

Back to the top