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Human rights law
[ch 1: pages 24-26]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).
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 employees’ right to respect for privacy (Article 8). However, the employer will be able to defend itself against allegations based on convention rights by proving that the steps taken were proportionate and lawful, and were 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 your 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 around the world 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 proposals to abolish the Human Rights Act 1998
The Conservative government is committed to the repeal of the Human Rights Act 1998 (HRA), and its replacement with a “British Bill of Rights”. In published proposals, Protecting Human Rights in the UK, the Conservative party accuses that the European Court of Human Rights (ECHR) of “mission creep” — expanding the Convention into areas beyond those originally intended, and of overruling democratic decisions by elected governments.
Published Conservative proposals envisage limiting the status of ECHR rulings by demoting the court to an “advisory” status. British Courts would no longer be obliged to take its rulings into account and would have the “final say” in interpreting Convention rights, “as clarified by Parliament”. The Supreme Court would be transformed into a “constitutional court” and the use of human rights laws would be limited to “the most serious cases” (as determined by the majority government of the day). Some in the party, such as Home Secretary Theresa May, take the position that the UK should leave the Convention if its proposals are not accepted.
Many commentators have pointed to the very significant legal, constitutional and political flaws in the Conservative plans. For example, the view of human rights campaigning charity Liberty, which describes them as “as legally illiterate as [it is] politically provocative” is widely shared. Most recently, in May 2016 an influential committee, the House of Lords European Union Justice Committee, called for the plans to be completely shelved and in the May 2016 Queen's speech, they do appear to have been modified to some extent.
The government’s proposals for human rights law are categorically opposed by the devolved administrations of Scotland and Wales. In Northern Ireland, concerns have been raised, in particular, that repealing the HRA 98 could undermine the peace settlement under the Good Friday Agreement.