Human rights law



Another important source of rights is the European Convention on Human Rights (the Convention) made by the Council of Europe, which the UK, like almost all European states, has signed. When deciding employment-related claims, employment tribunals must take into account 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”, and this means 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 a breach of human 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. Recent ECHR case law on covert workplace surveillance is looked at in Chapter 15.




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, page 204). 




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).


It is an established policy of the Conservative government to repeal the HRA 98 and to replace it with a "British Bill of Rights" once the UK has left the European Union. These plans remain in place notwithstanding widespread opposition. In Northern Ireland in particular, the Good Friday peace agreement depends on the UK remaining a Convention signatory.