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A slow start for the guardian of human rights

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The Human Rights Act will eventually bite, Janet Gaymer warns. There are too many questions still unanswered

When the Human Rights Act came into force in October 2000, many feared the impact it would have on employment rights issues. But what has been the effect so far?


It has certainly been brought into play in a number of employment areas. For example, the question of whether discrimination on the grounds of sexual orientation is unlawful is still with us. Debate was triggered by a Scottish case involving a man who was required by the MoD to resign after he had declared he was homosexual.


It was conceded that this was in breach of the Human Rights Convention (Article 8) which protects the right to respect for private and family life and prohibits discriminatory conduct. But the court did not accept that the word sex in the Sex Discrimination Act was ambiguous and concluded that it did not need to be reinterpreted in the light of the Human Rights Act. It decided that sex relates solely to gender and not to sexual orientation.


The conduct of disciplinary proceedings is another area that many thought would be affected Article 6 of the Human Rights Convention gives a right to a fair hearing. But cases reported so far indicate that where there is a statutory right of appeal to a court from a professional disciplinary body, this will be enough of a safeguard against any defect in hearings conducted by such bodies. This was the conclusion in a case concerning the removal of a nurses name from the professions register.


As far as employment tribunals are concerned, the focus has been on the test of reasonableness under Section 98 of the Employment Rights Act 1996. One of the tests of a fair dismissal is to ask whether the employer has behaved reasonably. Is the approach of employment tribunals to this question compatible with the right to a fair hearing?


So far the answer seems to be yes. In one recent case involving the Post Office, Lord Justice Tuckey saw nothing that required Section 98 to be construed and applied in any way differently from the way in which it was before the Human Rights Act came into force.


Resorting to the Human Rights Convention in employment tribunals seems particularly fraught with difficulty. In one of the very first cases to reach the Employment Appeal Tribunal, an employee claimed that she was suffering from work-related stress and took her case to a tribunal.


Her employer argued that any stress she suffered was due to her private life and instructed an occupational health physician to examine her. In a letter to the doctor the employer wrote that the employee was particularly easy to disbelieve and added that she could exaggerate the effect of her alleged illness.


The employee claimed that the employers conduct was in breach of her right to respect for private and family life (Article 8). The tribunal found that the employers actions were not only scandalous in relation to the relevant rules of procedure of the employment tribunal but were also in breach of Article 8. However the Employment Appeal Tribunal allowed an appeal by the employer, noting that the right to respect for private life was qualified and had to be balanced against the right of both parties to have a just trial.


There have been some innovative challenges based on the Act. For example, it was used to launch an attack on IR 35 as being incompatible with service contractors rights IR 35 was issued by the Inland Revenue as guidance on the employment status of a worker supplied to a client through an intermediary, such as a service company or partnership. The court found that subjecting service contractors to the common law of employment did not interfere with a human right.


But it should not be assumed that the Act wont eventually bite in the future. There are many questions still unanswered. These include whether the right to freedom of expression will assist whistleblowers; whether the unavailability of legal aid in employment tribunals breaches the right to a fair hearing; whether the obligation to give a reference has human rights implications; and the overall effect of the Convention on the prohibition of religious discrimination. The Act has a lot of growing up to do but it may yet grow faster than its parents intended.


janet.gaymer@haynet.com


Janet Gaymer is senior partner at Simmons & Simmons