In February's SMT, consultant Frederick De Domenico urged security professionals to plan for the consequences of the Human Rights Act. Here we provide some useful tips for doing just that, examining the salient points of each Article in the Act.
The Human Rights Act 1998 came into force on 2 October 2000. Designed to give effect in the UK to human rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms, many commentators made exaggerated claims prior to the Act's introduction about the potentially radical effects it could have in all areas of the law.

Such claims may well turn out to be unfounded (although the main area which most certainly will see a significant change is most likely to be the right to privacy in the workplace, and in respect of family life).

One of the key provisions of the Human Rights Act is that the courts and tribunals must interpret legislation – as far as it's possible to do so – in a manner compatible with European Convention rights. In dismissing a member of staff, employers/security managers must do so fairly, respecting the rights of the Convention conferred on individuals.

Indeed, the response of an employer may be judged by a tribunal by reference to the 'proper exercise' of Convention rights. As yet, however, this is unknown territory.

What's certain is that UK courts and tribunals now have a duty to act in strict accordance with the Human Rights Act – not only in cases involving public authorities but also in developing the law when it comes to deciding cases between individuals.

This new duty to interpret legislation in line with the Convention is effectively the way in which private parties will be able to enforce their Convention rights, albeit indirectly. Courts and tribunals must also ensure that their own processes comply with the Human Rights Act. If security managers are to be proactive rather than reactive in respect of the Act, they must get to grips with the extent of this new legislation. Only then can they prepare a plan to implement appropriate procedures within their own company's security policy.

To do that, they need to know the main points contained within the new legislation's various Articles, and their likely ramifications.

Know your Articles
Article 4 is highly important for managers and officers alike, prohibiting as it does compulsory labour. However, it's not very likely that employees working long hours (security officers are a good case in point) will be able to rely on this Article since it requires genuinely forced labour – ie for there to be physical or mental constraint. Economic duress is not enough. Instead, security managers should ensure they comply with their health and safety obligations, as well as the time limits imposed by the Working Time Directive.

Article 5 concerns itself with the right to liberty. While this right will have greatest impact on the 43 UK police forces during the course of search and detention procedures, there may be occasions where it could directly affect a private concern such as a manned guarding contractor.

Security staff may well find themselves apprehending suspected thieves in order to search them and detain them until the police arrive at the scene, and question them about their movements on the premises. In all probability there would be no real danger of a suspected thief succeeding in a direct action against a private body such as a security firm under the terms of Article 5.

That said, security managers and their officers must be aware of the possibility of civil claims for false imprisonment (where a suspect is detained against his/her will and is subsequently proven innocent). They should also be aware of claims for slander where a suspect is challenged in the presence of customers or members of staff about items in his or her bag that either haven't been paid for or simply shouldn't be there.

Any such challenge which is later discovered as unfounded by the courts could result in that person claiming that his or her reputation had been 'tarnished in the eyes of society'.

In the past, claims for slander resulting from such circumstances have proved costly for a great many businesses. Managers take note.

Rights to fair proceedings and privacy
Article 6 guarantees every individual the right to have their civil and criminal rights determined at a fair and public hearing by an independent and impartial tribunal. Indeed, some commentators suggest that employees who work for public authorities now have the right to a fair trial when it comes to internal disciplinary and grievance procedures.

However, case law from the European Court of Human Rights has held that the 'internal procedures' of a company – and the process of dismissal itself – does not fall within the remit of Article 6. An employee can complain to a tribunal wherever a dismissal occurs. This right in itself satisfies Article 6.

Meantime, Article 8 states that everybody has the right to respect for his/her family and private life in his/her home and in his/her correspondence. The interests protected by Article 8 have a number of serious implications for employment law. Take correspondence and communications, for example. The right to respect for privacy in correspondence under Article 8 impacts on the unauthorised monitoring by security and IT managers of employees' correspondence and other communications in the workplace.

As Frederick De Domenico pointed out in the February 2001 edition of SMT ('Rights of passage', pp26-27), the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations came into force last October. Private businesses and public authorities are now allowed to intercept electronic communications for certain limited purposes only. These include:

  • providing evidence of commercial transactions;
  • ensuring compliance with regulatory practices;
  • (at the simplest level) preventing crime;
  • investigating the unlawful use of an IT system, without the consent of employees.
If IT security managers, for instance, wish to 'intercept' for other reasons beyond those set out in the Telecommunications Regulations they must first gain the express consent of employees. If you do decide to intercept and monitor communications, you'd do well to ponder on the following points:
  • is it necessary to monitor and intercept staff communications for a business purpose in order to prevent crime, or an unauthorised use of the employer's system?;
  • you must provide all staff – including your own in-house or contract security team – with clear and unambiguous guidance relating to the use of telephones, e-mail and the Internet;
  • advance warning must be given of any monitoring that is likely to take place – this removes the employee's expectations of privacy (in any event, such a warning is expressly required by the Regulations);
  • gain express consent if the interception is for a purpose not listed in the Regulations such that you avoid any liability (the ideal way to attain consent would be to incorporate such a provision into the employees' contracts of employment, followed up by various notices – including training on the proper use of Internet facilities, telephones and the e-mail system, along with regular updates on the host company's position on such matters).
Security managers should always remember that any activity directed at obviously private communications – and carried out for a malicious or other non-business reason – will be treated as suspect. This is particularly so as any interpretation of the Telecommunications Regulations will have to take account of a given individual's right to privacy as stated in Article 8.

Dressed for the part
The European Court of Human Rights indicated that Article 10 may include the right of a given individual to express his or her ideas by means of the way in which he or she dresses. This could impact upon dress codes in the workplace. Dress codes differentiating on the basis of the sex of the employee (eg requiring only men to have short hair, or forbidding women from wearing trousers) may be subject to employee claims under both Articles 10 and 14 (of which more anon). In view of this, employers/managers will need to ensure that dress codes are applied objectively.

Of course, security officers (and many managers) wear company uniforms. Under the terms of the Human Rights Act, employees will not have the right to object to wearing a uniform. However, where men are expected to wear trousers at work, and female employees are expected to wear skirts, this may have a potential effect under Articles 10 and 14 of the Human Rights Act – and could give rise to discrimination based on sex.

Therefore, it's important for employers and managers to ensure that any female security staff are allowed to wear trousers on duty so that potential claims may be avoided.

Old case law allowing dress codes is no longer safe to rely on. These dress codes were justified in the past, but from now on that's simply not the case.

Freedom of association and assembly
Article 11 of the Convention provides that everyone has the right to freedom of peaceful assembly, and to freedom of association – including the right to join and form trade unions for the protection of the employee's interests.

Without doubt, Article 11 does force an individual to join a trade union. The logic behind this is that the freedom to associate must embrace the freedom to choose not to associate with a particular individual.

Some argue that the European Convention gives individuals the right to be represented by their trade union over and above any statutory recognition procedure.

A question of discrimination Article 14 provides that the enjoyment of the rights and freedoms set out in the European Convention for the Protection of Human Rights shall be secured without discrimination on any grounds (such as sex, race, colour, language, religion, politics, national or social origin, asso-ciation with a national minority, property, birth or other status). Managers should be aware that, in its own right, Article 14 is not a free-standing right (ie under the terms of the Human Rights Act, an employee cannot bring a claim based on discrimination alone – it must be used in con-junction with a claim made under another article).

Before the Human Rights Act became law, many commentators were predicting sweeping changes to the employer-employee relationship, and in workplace practices in general. In terms of employment law, though, there will not be the major revolution that many were forecasting.

If any changes do occur, they are most likely to relate to dress codes, expression of political opinions at work, general fairness of process and, perhaps, future modifications to the rights of all those employers who monitor staff communications.

It's worth remembering, though, that the Act is a 'living instrument', and therefore liable to societal change.

Make no mistake about it, the actions of security personnel will be scrutinised more and more in the years ahead, and cases relating to disciplinary investigations and interviews will arise. The message is simple. Add a Human Rights element to your security and employment policies now...or be prepared to face the music.

CCTV and the Human Rights Act: a Code of Practice for end users

A new Code of Practice for CCTV users was published by the Data Protection Commissioner back in July 2000, setting out for the first time a comprehensive legal framework governing the use of CCTV systems. The basic aim of the Code is to assist end users who operate CCTV schemes which monitor members of the public to do so in full compliance with the Data Protection Act 1998. All those security managers and their officers who use CCTV as part of their daily duties to prevent or detect crime should be aware of the main principles of the Code, and then they must act accordingly. In essence, managers must first establish the purpose for which the CCTV system is intended before installation on site. The technology must only be used for legitimate purposes (ie to detect and prevent crime). Also, managers must make sure that the Data Protection Commissioner is notified of a given system’s use. In terms of system installation, ensure that the equipment is located in such a way that it only monitors those spaces intended for coverage. It’s also prudent to locate any CCTV signage in a prominent place so that members of the public, etc are fully aware they are entering a zone covered by surveillance systems – a good example of this is the Goodwin project in Hull (see ‘Caught in the Net’, SMT, February 2001).

Only Human: the freedom of expression and religion

Article 9 provides individuals with the right to hold religious beliefs, to change those beliefs and to manifest them in worship, teaching and observance. While the right to hold a belief is absolute, the right to its manifestation is subject to several limitations. In the context of employment, one of the key issues with which managers should acquaint themselves is the ability of a given individual to worship, and where that period of worship may conflict with working obligations. The European Court of Human Rights has tended to shy away from providing much support for given individuals in such circumstances. In the recent case of Ahmad versus the UK, the employee claimed that he was forced to resign from his post as a teacher because he was refused permission to attend the local mosque during working time each Friday. The courts held that there was no breach of Article 9, as it looked to the clear terms of his contract that were known to him at the time he began his job. The right to freedom of expression can be found in Article 10. Some have argued that employees could express whatever views they like both within and outside the workplace – regardless of whether or not it causes offence to others. It’s doubtful, however, that Article 10 will be interpreted in this way by the UK courts. This right is far more qualified than the other Convention rights, carrying with it specific duties and responsibilities. As to the expression of political opinions in the workplace, most cases that have been decided by the European Court of Human Rights have related to the right of public sector workers to hold political opinions and affiliations. Many of the cases heard thus far have turned on the need for impartiality of the employee in question. It’s likely that an employer or a manager who discriminates on the grounds of political opinion and/or affiliations would find such an action very difficult to justify in court. Security managers should note that, via new legislation, fresh prohibitions against discrimination in the workplace on the grounds of belief will come into force no later than 2003. The message is clear...watch this space.