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What does the Bill of Rights mean for employment law?

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The government’s new Bill of Rights proposes sweeping change to the human rights regime in the UK which will impact how the courts interpret employment law.

The European Convention on Human Rights (the Convention) is an internationally binding treaty, which sets out minimum standards for the protection of human rights.

Parties to the treaty, including the UK, are required to abide by the final judgments of the European Court of Human Rights in Strasbourg (ECtHR), whose role is to enforce Convention rights.

The Convention was incorporated into domestic law with the introduction of the Human Rights Act 1998 (HRA).


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What changes will the Bill of Rights introduce?

Under the the new Bill of Rights proposal the UK will remain a signatory to the Convention and UK courts will retain the power to declare UK legislation incompatible with the Convention. However, several key changes will be made to the human rights regime in the UK including:

  • A new permissions stage under which claimants will be required to demonstrate they have suffered significant disadvantage before a human rights claim can proceed.
  • Courts will no longer have the power to interpret UK legislation in a manner that is compatible with convention rights.
  • Courts will be required to give great weight to the importance of protecting the right to freedom of speech.
  • The importance of case law from the ECtHR will be diluted, with the UK courts being given the power to diverge from the ECtHR case law.

 

What will be the impact on employment law?

Human rights have been at the core of recent judgments on religion and belief discrimination. In Forstater v CGD Europe, the employment appeal tribunal applied article 9 (freedom of thought, conscience and religion), article 10 (freedom of expression) and article 17 (prohibition of abuse of rights) in order to address the question of whether Ms. Forster’s gender-critical beliefs were capable of protection under the Equality Act 2006.     

In Gilham v Ministry of Justice, the Supreme Court had to consider whether a judge who did not have worker status was entitled to whistleblower protection under the Employment Rights Act 1996 (ERA) by virtue of convention rights.

Article 14 of the convention provides that rights must be secured without discrimination. Ms Gilham argued that denying her whistleblowing protection by virtue of her status as an officeholder impinged on her enjoyment of her right to freedom of expression. 

The Supreme Court found that she had been treated less favourably due to her status as a judicial office-holder. 

The outcome of both cases may well have been different under the Bill of Rights. The courts may have adopted a different interpretation or reasoning in light of the duty to attach great weight to freedom of expression. 

Moreover, in the absence of any power to interpret legislation to make it compatible with Convention rights, the courts would have been unable to read words into the employment legislation in order to render it compatible.

In the case of Gilham v Ministry of Justice, under the new regime a declaration of incompatibility, rather than a remedy, may have been a more likely outcome.

 

The future of employment law

The Bill is at an early stage in its progress towards enactment. However, if introduced in its current form, it has the ability to significantly shape and influence employment law in the future.

 

Louise Mason is employment and incentives senior associate (knowledge) at Linklaters