Legal: The rights stuff

The Human Rights Act (HRA) has directly incorporated the European Convention on Human Rights into UK domestic law, allowing individuals to launch a claim directly against a public sector employer alleging a breach of the HRA or the Convention. Although private employers will not face claims directly from employees under the HRA, courts and tribunals are required to decide claims in a manner compatible with the Convention.

Article 8 (the right to privacy) and Article 10 (the right to freedom of expression) of the Convention may have considerable implications in areas such as the use of CCTV surveillance and the enforceability of no smoking policies at work.

Employers who use CCTV surveillance without notifying their staff are likely to encounter difficulties if they seek to dismiss an employee on the basis of evidence discovered from such monitoring. A resulting unfair or wrongful dismissal claim may include an allegation that the company breached the employee's right to privacy under Article 8 by carrying out covert surveillance.

To defend against such claims, employers should be able to demonstrate that such surveillance was justified. It is also good practice for employers to obtain employee consent to any surveillance (including email and telephone monitoring) so that they can legitimately argue that there has been no breach of the Convention.

There is also a possibility that the prohibition of smoking in the workplace may breach of Article 8 of the Convention if the employer does not properly inform all staff of any no smoking policy. There is also a potential argument that such a policy could breach Article 10 of the Convention on the basis that it prohibits freedom of expression. However, employers should be able to successfully argue that the policy is justified on health and safety grounds.

The HRA is more likely to affect public sector employers, against whom the Convention is directly enforceable. Private sector employees will be forced to rely upon the courts and tribunals to consider what (if any) rights under the Convention are relevant to their claim. In addition, employers will be able to defend any claims alleging a breach of the HRA or the Convention on the basis that their actions were justifiable.

Contract disputes
What effect will the HRA have on the increasing use of adjudication to resolve disputes under facilities management contracts?

The decision in the case of Nottingham Community Housing Association v Powerminster Ltd (2000) confirmed that these contracts may be subject to statutory adjudication under the Construction Act. In this case, the judge was asked to consider whether the repair and maintenance of heating systems installed in a building could be considered to be a construction operation governed by the Act. While the judge found that such activities did fall within this definition, the case left open the question of whether other activities such as the servicing of gas appliances or the undertaking of safety checks were covered.

Such confusion may now be resolved in the facilities management industry by the use of the Chartered Institute of Building's standard form of facilities management contract or the new PACE GC/WORKS/10 standard form of facilities management contract. Both provide for fast-track adjudication compliant with the Construction Act, with a decision within 28 days that is binding unless the parties refer the dispute to the courts or to arbitration. Given that statutory adjudication is working well in the construction industry, the adoption of adjudication in facilities management should be welcomed.

Statutory adjudication has received much judicial support to date to ensure that it works effectively. However, the courts now must deal with a new threat to adjudication. They must balance the right to adjudicate with the rights enshrined in the HRA. Under Article 6 of the Convention, 'every person is entitled to a fair and public hearing, within a reasonable time and before an independent impartial tribunal established by law'. Many of the features of adjudication do not sit easily with these rights. The short timeframe may not give the adjudicator the chance to properly consider the issues, the respondent may be "ambushed" by a claimant who has had months to prepare and the adjudicator may decide there will be no hearing and give his decision on the documents only.

So far, the courts have managed to sidestep these potential problems. In Elanay Contracts Ltd v The Vestry (August 2000), the respondent argued that it had not had enough time to respond to the claim. However, Judge Havery found that Article 6 did not apply to proceedings before an adjudicator because, although they were determining a question of civil rights, any decision was only provisional since it could be reopened by a court.

It is unlikely that this will be the last word on the subject since adjudicating parties are likely to call on the HRA to provide them with a defence to avoid paying under an adjudicator's decision. Facilities management will have to keep an eye on the large body of adjudication case law that is rapidly emerging, and this will no doubt include further decisions on the HRA.