Personnel’s preparation for the forthcoming Human Rights Act should involvepolicy vigilance, not panic The expression, “I know my rights” is likely to make any personnelmanager’s heart sink. Many are dreading the introduction of the Human RightsAct (HRA) on 2 October this year. Much press coverage suggests it will letloose an army of barrack room lawyers, while others are unconcerned. Who isright?Neither. There are traps, but only for the unprepared. The HRA incorporates the European Convention on Human Rights into UK law.Individuals will now be able to enforce it in the UK, whereas before they hadto go to the European Court of Human Rights in Strasbourg.The convention, however, is concerned primarily with protecting theindividual against the state, so the HRA applies directly only to publicauthorities. Many writers have dismissed the area of employment as beinglargely unaffected, and this will trip up the unwary.Law translationFirst, the HRA applies directly to public-sector employers. Second, courtsand tribunals are included in the definition of “public authority”.They have an express duty to interpret UK legislation as far as possible in away that is compatible with the convention. For example, the convention states, “Everyone has the right to respectfor his private and family life, his home and correspondence.” Employmenttribunals may take this into account in determining the fairness of dismissals,for instance, unauthorised absence for a family reason. Similarly, employeesmay be able to claim constructive dismissal if they are video-taped at workwithout their knowledge or are subjected to random drugs tests. The convention also states, “Everyone has a right to freedom ofexpression”. This could affect dress codes, even sex-neutral ones.Employers may ban nose studs but an employee could claim that this infringedtheir right of free expression. Similarly, the convention right to a fair trialcould have a bearing on the fairness of disciplinary proceedings.But the convention is not a barrack room lawyer’s charter. Many of itsprovisions have very limited or no application in the employment field.Employees may feel their job contravenes the convention right not to be”held in slavery or servitude”, but as a matter of law that is very unlikely.Similarly, the convention prohibition on discrimination, while superficiallyrelevant to the employment field, is unlikely to bear much relevance because ofthe way it is framed.Some defences and derogations are provided for in the Act. For example, apublic authority may interfere with the exercise of a right if the interferenceis “in accordance with the law and is necessary… for the protection of therights and freedoms of others.” So, for example, an employment tribunalmay decide that a random drugs test policy may be necessary to protect thehealth and safety of co-workers. An employer’s absence policy would have to gofurther than was necessary to protect its legitimate rights that staff shoulddo work they are paid for before it contradicted “respect for familylife”.Employer-friendly The European Court of Human Rights has itself taken an employer-friendlyapproach to many cases. For example, in the Ahmad case, a Muslim schoolteacherwanted to pray at his mosque for 45 minutes each Friday. The educationauthority refused. He claimed the authority was infringing his right to”freedom of religion” under the convention. The court held, ineffect, that he did not have to take up a job which required him to work onFridays. Legally, this is an odd decision but it did help the employer.So, the message for personnel departments is to be aware of the Act but donot take too much notice of the scare stories. And be prepared for barrack roomlawyers.By Dea Fischer, an associate at law firm Wragge & Co Informed HR team has nothing to fear from HRAOn 29 Feb 2000 in Personnel Today Comments are closed. Previous Article Next Article Related posts:No related photos.