Solicitor Michael Ryley tells employers how to avoid the pitfalls in the Human Rights Act.
What effect will the Human Rights Act have on the workplace? The act places a duty on courts and employment tribunals to interpret and develop the law in accordance with the principles of the European Convention on Human Rights, which enshrines an individual's fundamental rights in areas such as freedom of association, privacy and freedom of expression. This will certainly affect the relationship between employers and their staff.

So what should employers do to comply with the act? Judging what measures to put in place is made difficult by the broadly drafted nature of the legislation. The convention comprises a series of articles, each affording protection of a particular right, and each capable of wide interpretation. The most important rights to be aware of are:

  • The right to a fair trial (article 6)
  • The right to respect for private and family life, home and correspondence (article 8)
  • Freedom of thought, conscience and religion (article 9)
  • Freedom of expression (article 10)
  • Freedom of assembly (article 11).
How will these rights manifest themselves in daily working life? For example, if you catch a worker on CCTV taking bricks from a site and dismiss them, an employment tribunal considering a complaint would have to consider whether the means of gathering evidence infringed the right to privacy.

What areas of working practice should employers review? The practical implications of the new law will become apparent only when test cases have been decided. However, employers should consider these steps:

  • Review email and telephone policies Make sure employees are aware of any screening measures in place. There is a general right to privacy in the workplace under the convention. Practical steps can be found in the draft code of practice issued by the data protection commissioner (www.dataprotection.gov.uk).
  • Consider a more flexible approach to standards of dress Codes that require uniforms to be worn when the employee is not in contact with customers or the public are likely to be particularly vulnerable under the new law.
  • Examine any contractual right to insist on medical reports, searches or tests Ensure that such rights do not infringe article 8. They are likely to be unlawful if they go beyond what is strictly necessary to protect the employer's interests.
  • Reassess the use of security checks (including CCTV) Employers may protect the security of their premises or sites, but they may not snoop on employees
  • Scrutinise the treatment of minority religious groups Ensure that the right to freedom of thought is not infringed – in particular a worker's rights to observe prayer times and religious holidays.
  • Make sure there is no interference with freedom of assembly Do nothing to interfere with the right to join or not join a trade union. There is an argument that employees should be free to form a union and be consulted even if they fall short of the majority support required for statutory recognition.
  • Consider wider discrimination rights Minority groups should be as free to express social and political opinions as majority groups.
It is inevitable that imaginative lawyers will try to persuade tribunals that unfairness in dismissals must be interpreted much more widely. Familiar concepts and practices may have to be rewritten and employers will need to be equally imaginative to spot the many pitfalls ahead.

Employers may use CCTV to protect the security of their premises, but not to snoop on employees

Postscript

Michael Ryley is a partner and head of the employment group at Masons.