It is now over 10 years since the Human Rights Act first came into force. Its impact in the workplace has been less dramatic than in other contexts, but now is a good time for local authority employers to take stock of the growing body of case law that has developed in the employment field. Four convention rights have proved significant in this context: article 6 (right to a fair trial); article 8 (family and private life); article 9 (freedom of thought, conscience and religion); and article 10 (freedom of expression). The last three rights are not absolute. Restrictions are allowed, among other things, to protect the rights of other people, and, in the case of article 10, their reputation.
Article 6 and disciplinary proceedings
An unidentified local authority school has been at the centre of a high-profile case about whether Article 6 entitles an employee to legal representation at internal disciplinary proceedings. Article 6 is primarily directed at criminal proceedings, but it can also apply to a disciplinary hearing if it is “determinative of civil rights”. In such a case article 6 confers a number of rights, including entitlement to legal representation.
The mere loss of a job is not generally regarded as a matter of civil rights, and in any case the relevant forum for determining such rights will normally be an employment tribunal, which can decide whether the dismissal was unfair and has the power to reinstate the employee. However it has been argued that some findings of an internal disciplinary hearing can have such a serious impact on the employee that article 6 is engaged. This may be the case where the decision of the disciplinary panel is in effect the final decision on the facts, and if it goes against the employee will almost inevitably lead to the loss of their career.
This point was taken by a classroom assistant who was accused of inappropriate contact with a school pupil. He took proceedings to prevent the disciplinary hearing going ahead without legal representation and his case ended up in the Supreme Court, which announced its decision earlier this year. The Court of Appeal had decided that although it was the Independent Safeguarding Authority (ISA) who would decide whether he should be barred from working in schools, the factual decision of the disciplinary panel was so important that he should be entitled to legal representation at the internal disciplinary.
The Supreme Court (but only by a majority) overturned the Court of Appeal’s decision. It said that the courts below had underestimated the independence of ISA and the robustness of its decision making, so article 6 was not engaged at the disciplinary hearing. This decision considerably narrows the scope of article 6 in internal disciplinary hearings where they are subject to further review by a regulatory body.
Social media and the internet
There have been a number of wellpublicised “Facebook sackings” in recent months. Although none of the cases that have come to our attention so far are from the local authority sector, they clearly have lesson to teach employers in this sector. According to research by ACAS, attention is increasingly focusing on the use of social software by employees, having previously been directed at more general internet usage.
However, due to the qualified nature of articles 8 and 10, no serious attempt has yet been made to challenge disciplinary action taken by employers against “inappropriate” use of social software. As far as article 8 is concerned, comments on Facebook may well be seen to be in the public domain. Even if standard privacy settings are used, due to the large number of “friends” most users have, it can be difficult to argue that there is a reasonable expectation of privacy in comments that can typically be seen by hundreds of people, including work colleagues.
Article 10 is also likely to be of limited use, particularly where the employee is faced with a clear internet usage policy which makes it clear that disciplinary action will be taken if the employer’s reputation is brought into disrepute. More is likely to turn on the employee’s own internal procedures, and broad considerations of fairness, than on human rights issues. Local authority employers would therefore do well to check that their internet usage procedures are fully up to date and take into account social software.
Freedom of religion
Article 9 has to date been interpreted restrictively in an employment context by the European Court of Human Rights (ECHR), which may partly explain why in general claims by employees based on indirect discrimination on grounds of religion or belief have enjoyed limited success. In the most recent decision in this area to reach the Employment Appeal Tribunal, an employer was found not to be in breach of the Religion or Belief Regulations (now incorporated into the Equality Act) when it denied a Muslim security guard time off to attend Friday prayers, due to the difficulties of arranging suitable cover.
This may change when the ECHR has a chance to consider references in four recent religious discrimination cases, including that of Ms Ladele, the local authority registrar who felt that officiating at civil partnership ceremonies put her in conflict with her religious beliefs. Many working in the public sector will be following the progress of this particular reference with interest.