How will the future of the Human Rights Act impact employers?
In recent weeks the proposed plans to scrap the Human Rights Act has continued to gain increased attention.
Although last weekâ??s Queenâ??s speech stopped short of announcing a legislative plan, there are government plans for reform.
The Human Rights Act gives effect to the European Convention on Human Rights (ECHR) by providing that, so far as possible, UK legislation should be interpreted in a way that is compatible with the ECHR.
Currently therefore, UK courts can be bound by decisions made in the European Court of Human Rights (ECtHR).
As a result some decisions in the ECtHR have caused concern that it is now dealing with too many political questions, which would have previously been handled in the UK courts. One of the main aims of abandoning the Human Rights Act therefore is to reduce the impact that decisions made by the ECtHR have on UK law.
But what impact would scrapping the Human Rights Act have on employers? Would we see a change in the employment relationship?
How has human rights impacted the employer, employee relationship?
Basic human rights are based upon core principles such as fairness, equality, dignity, respect and autonomy. These rights outlined in the ECHR, including the right to freedom of thought, conscience and religion, the right to a family and private life, the right to freedom of expression, and the right to freedom of assembly and association, have been incorporated into general employment law to protect everyone within the workplace. One of the most important of those rights being the right not to suffer discrimination.
Over the years a number of rulings made by the ECtHR have significantly affected employment law in the UK, endorsing a number of rights for employees.
The right to manifest a religious belief:
The European Court in Eweida v United Kingdom held that a Christian employee of British Airways had her right to freedom of thought, conscience and religion, under article 9 of the ECHR breached when UK courts found that she had not been discriminated against, when prevented from wearing a visible silver cross necklace at work by the airlines uniform policy.
The right to join a Trade Union:
Wilson v United Kingdom was a case concerning discrimination by employers against their employees who join and take action through trade unions. The ECtHR held that employees had a fundamental right to join and engage in trade union related activities and take action to protect their interests, under article 11 of the European Convention, the right to freedom of assembly and association.
The right to privacy at work:
In Halford v United Kingdom the ECtHR held that the Merseyside Police Authority violated its assistant chief constableâ??s right to privacy under the ECHR when it tapped her office telephone calls for the purposes of gathering information, in order to defend a sex discrimination complaint she had initiated. No warning had been given to her that calls made on her office telephones would be liable to interception, and so she had a reasonable expectation of privacy for such calls.
The right to political opinion or affiliation:
The ECtHR in Redfearn v United Kingdom held that an employeeâ??s right to freedom of assembly and association, under article 11 of the ECHR, had been violated when he was prevented from bringing an unfair dismissal claim after being dismissed for being a member and elected local councillor for the BNP. UK legislation was subsequently changed enabling employees to bring an unfair dismissal claim, from day one of their employment, where they had been dismissed on account of their political opinion or affiliation.
How will a repeal of the Human Rights Act affect the rights of employees?
Whilst the Conservative government plan to replace the Human Rights Act with a British Bill of Rights, it is envisaged that human rights will continue to be as important as ever.
Breaching an employeeâ??s human rights will still most likely be viewed as a breach of an employerâ??s obligation of trust and confidence towards its employees. Dismissing an employee for a reason which could be in breach of one of their human rights would also be seen as unfair.
Although there is little detail available regarding what may be included in any UK Bill of Rights, it is likely that the common law principles will be upheld to interpret legislation in line with human rights.
The main change would be that decisions in the ECtHR would no longer be binding in this country. As a result, the Supreme Court would not have to follow the decisions of the ECtHR and the ECtHR would not have the power to determine the meaning of UK legislation.
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