The results from our last head to head show that 62% of voters agree that TUPE has had its day. An overwhelming 90% believe that some form of employee protection is still necessary, possibly based on existing redundancy law. For the full results, please click HERE.
Our latest head to head focusses on the hot political topic of the Human Rights Act. Should it have any role in employment law?
Paul Mander, Head of Employment
YES, EMPLOYEES NEED THE HUMAN RIGHTS ACT BECAUSE...
The Human Rights Act (HRA) was expected to have a major impact on all areas of law including employment. The thought was that the HRA would create new rights against public authorities, as well as introducing the requirement that all existing laws be interpreted consistently with the European Convention on Human Rights (ECHR). When it was introduced nearly 15 years ago, the HRA was anticipated to cause a cultural shift which would have a positive impact on both individual and collective rights and give employees much greater protection.
Although it did not quite happen this way (and the HRA covers much more important issues such as the right to life, and the prohibition on torture and inhumane treatment), it has given employees another argument to ensure that they are treated fairly in the workplace. A repeal at this stage could lead to a mistaken belief that the concepts it embodies are no longer relevant. Given the HRA is in effect a piece of law about fairness to repeal, it would be a retrograde step.
No-one could reasonably object to the right to a fair trial but, given what has happened with tribunal fees, an apolitical right enshrined in both the ECHR and HRA is still necessary to protect employees. Unscrupulous employers may seek to tip the balance further away from the principles of fairness and equality that the ECHR was designed to regulate. There is a clear benefit in the way in which the concept of fairness has been used to ensure that disciplinary procedures take into account the right to a fair trial without, in fact, requiring any employer to fund their errant employees' own defence.
Equally, the HRA provides the right for respect of family and private life. In the 21st century this has never been more needed. There can be no cogent argument that employees should not enjoy privacy in some aspects of their life. No employer needs to know everything about everyone they employ. It is beneficial that an employer’s ability to monitor an employee’s private communications is limited. Employees do not need big brother watching them and, thanks to the HRA, employers must now consider privacy issues when monitoring their staff – both at work and also if they wish to engage in covert filming of employees outside the workplace.
The right to freedom of thought, conscience and religion under the HRA is something which should be celebrated as part of the foundation of a civilised society and a society which values all people, including employees. Employees may, on occasion, need this protection in cases where their right to freedom of thought etc. is fundamental to who they are. The HRA makes it very clear that employers cannot just disregard this because they wish to project a certain corporate image, for example.
The HRA is a fundamentally good piece of legislation. It was introduced with cross-party political support. But it isn’t earth shattering and, in general, it neither creates rights which did not otherwise exist for employees nor prevents employers from operating their businesses in the ways that they would like. When it is engaged, it is clear in balancing the rights of employees against employers. The courts have shown sense in interpreting the relevant provisions into English law. Removing it is unnecessary, will create uncertainty in the courts and further uncertainty in the workplace.
NO, EMPLOYEES DO NOT NEED THE HUMAN RIGHTS ACT BECAUSE...
The Government has recently suggested the Human Rights Act (HRA) be repealed and replaced with a Bill of Rights. Whatever one’s personal views on that, it is interesting to consider whether the HRA has actually worked in the sphere of employment law.
It is undeniable that the European Convention on Human Rights (ECHR) sets out the principles by which governments and citizens of a modern democratic nation should follow and be guided. Its sets out rights such as the right to life, prohibition of torture, the right to liberty and security, the right to a fair trial etc.
The question here is, however, should such rights, through the HRA, form part of our employment law?
We already have a huge amount of employment law. This law is based not only on statutory provisions which have been on the statute book for more than 40 years but also on case law which has interpreted those statutes in a large number of different workplace scenarios. We have laws to protect against bad employment practices in dismissing, harassing, victimising and otherwise discriminating against vulnerable employees.
Furthermore, by virtue of our membership of the EU, the rights of our employees have been massively expanded. These employment laws already cover and deal with all of the ECHR rights that are inserted into our law by virtue of the HRA.
Employment tribunals have been trying to balance the rights of employees against those of employers in an even handed manner well before the HRA came into force. Do we really think that the introduction of the HRA has made employment judges suddenly sit up and say to themselves 'ahh, now that the HRA is in force, I’d better make sure I change my mind and apply the law fairly?' Do we need an overriding human rights law to assist in interpreting our employment statutes? Definitely not.
Moreover, the human rights which arguably might apply more readily to workplace scenarios are 'qualified rights'. These include the right to respect for private and family life and freedom of thought, conscience and religion. The fact that they are 'qualified rights' means that any intervention must be in accordance with the laws already in place. If they are already compatible, why do we need the HRA?
There is evidence that employees are using the HRA to raise spurious arguments to seek to bolster cases without merit. Take the case of the employee, a probation officer working with sex offenders, who sought to argue that his dismissal for engaging in out of work activity connected with bondage, domination and sadomasochism, was unfair because it prevented his freedom of expression and his right to a private life. The fact that such services were advertised on the internet seemed not to dissuade him from the latter argument! That case went all the way to the European Court of Human Rights, at great expense to the taxpayer.
So, whatever your views about the benefits of the HRA in other areas of the law, it seems that, for employment law, employees simply do not need it and employers would be better off without it.