LRD guides and handbook May 2017

Law at Work 2017

Chapter 1

Human rights law


[ch 1: pages 21-22]

Another important source of rights is the European Convention on Human Rights (the Convention) which the UK, like almost all European states, has signed. When deciding employment-related claims, employment tribunals must take into account the case law of the European Court of Human Rights (ECHR). This is entirely separate from the European Union, and the decision to leave the EU does not directly affect this court.



The human rights most relevant to the employment relationship are:



• Article 6: the right to a fair trial by an independent and impartial tribunal established by law;



• Article 8: the right to respect for private and family life, home and correspondence, including reputation and the ability to develop professional and work relationships;



• Article 9: the right to freedom of thought, conscience and religion;



• Article 10: the right to freedom of expression;



• Article 11: the right to freedom of association; and



• Article 14: the right to freedom from discrimination. 



In the UK, these rights are codified into English law by the Human Rights Act 1998 (HRA 98). 



Human rights are based on core principles such as dignity, fairness, equality, respect and autonomy. Some human rights, such as the right not to be tortured, are absolute. In other words, they can never be violated without breaking international human rights law. However, most human rights are not absolute. Instead they are “qualified”, meaning that they can be interfered with in certain circumstances. For example, an employer that uses covert surveillance to investigate a suspected theft is likely to infringe the employee’s right to respect for privacy (Article 8). However, the employer will be able to defend itself against allegations based on convention rights if it can prove that the steps taken were proportionate and lawful, and intended to achieve an objective permitted by the Convention, in this example the prevention of crime or fraud. 



Sometimes Convention rights clash with each other, so that the ECHR must engage in a balancing exercise. A good example is the right to manifest religion at work. This right is not absolute but instead must be balanced with the fundamental rights of others, such as the right of LGBT workers to freedom from discrimination (see Chapter 7). 



Human rights law provides a vital source of protection for trade union rights in the UK. Unions across Europe have brought claims to the ECHR to secure the right to belong to a trade union and to engage in trade union activities free from victimisation. In recent years, the ECHR has confirmed that the right to freedom of association (Article 11) includes both the right to engage in free collective bargaining and the right to strike (see Chapters 5 and 6). 



Conservative government plans to abolish the Human Rights Act 1998



Introducing a new British Bill of Rights was a Conservative Party manifesto pledge in 2010 and 2015, with the repeal of the Human Rights Act 1998 (HRA 98). The promised new Bill would include all existing protections but also “restore common sense”. In published proposals, Protecting Human Rights in the UK, the Conservatives accuse the European Court of Human Rights (ECHR) of “mission creep” – expanding the Convention into areas beyond those originally intended – and of overruling the democratic decisions of elected governments.


In February 2017, Justice Secretary Liz Truss confirmed that the government plans to repeal the HRA 98 once the “Great Repeal Bill” has become law (see box on page 20). During the Brexit campaign, prime minister Theresa May was explicit in her support for a policy of ceasing to be a Convention signatory. 


EU member states are legally obliged to be Convention signatories – the Convention is incorporated into EU law through the Lisbon Treaty. There are widely shared concerns as to the potential impact of the UK’s decision to leave the EU on human rights law in the UK.


Many commentators have highlighted the significant legal, constitutional and political flaws in the Conservative plans for human rights law. For example, the view of human rights campaigning charity Liberty is that they are “as legally illiterate as [they are] politically provocative”.


The proposals are categorically opposed by the devolved administrations of Scotland and Wales. In Northern Ireland, the Good Friday peace settlement depends on the UK remaining a Convention signatory.