Employment cases involving human rights principles may not always hit the headlines, but there have been a number of significant cases in recent years which have considerably raised their profile, though not necessarily their effectiveness.
Four convention rights have proved significant in an employment 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.
Although employees can only rely on the Act directly if working in the public sector, the Act has the potential to reach all types of workplaces because of the obligation of the courts to read our domestic legislation in a way that is compatible with the Act if at all possible.
Article 6 and disciplinary proceedings
One question that the courts have been asked a number of times in recent years is whether an employee is entitled to legal representation at an internal disciplinary hearing. 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 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. But it can still apply when the decision of an internal panel will in effect be career-ending, as may be the case where senior doctors in the NHS are disciplined.
Social media and the internet
There have been a number of wellpublicised “Facebook sackings” in recent months, including that of a pub manager who was held to be fairly dismissed for making rude remarks about customers. According to research by ACAS, employers’ attention is increasingly focusing on the use of social software by employees, having previously been directed at more general internet usage.
That was the approach taken in another recent case, this time involving an employee working in customer services. She had posted some relatively mild comments on her Facebook page, for example “I think I work in a nursery and I do not mean working with plants”. This time the employment tribunal decided that she had been unfairly dismissed, and there is no evidence in the decision that human rights issues were even considered.
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. In another recent case – involving an offensive email sent from a home computer to a colleague – the fact that the recipient was encouraged to pass it on was thought to be sufficient to defeat any article 8-based argument.
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 employer’s own internal procedures, and broad considerations of fairness, than on human rights issues.
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, included those involving Ms Eweida, the BA employee who was not allowed to wear a cross outside her uniform, and Ms Ladele, the registrar who felt that officiating at civil partnership ceremonies put her in conflict with her religious beliefs. To date ECHR rulings have done little to prevent employers from imposing rules that interfere with religious expression, as opposed to freedom of thought, as long as they comply with domestic law. In Britain, like most EU countries, indirect discrimination on religious grounds is allowed if it can be objectively justified.