Yes we’ve had a year of human rights, but has it made any difference to the outcome of employment disputes?
2nd October 2001 marked the first birthday of the the first birthday of the Human Rights Act ("HRA") but where were the celebrations? The publicity accompanying its arrival a year ago was noticeably lacking a year later. And why – could it be that, from an employment perspective at least, the HRA has made little difference?
As a quick reminder, the HRA was intended to prohibit slavery and enforced labour, to provide a right to a fair trial, respect for private and family life, freedom of thought, peaceful assembly, conscience and religion, freedom of expression and prohibition of discrimination. This made impressive headlines a year ago and the HRA looked set to have far reaching implications for marketing services. However three examples of the HRA in operation tell a different story:-
Article 14: prohibition of discrimination
Traditionally, the Sex Discrimination Act ("SDA") has been thought to exclude from its ambit discrimination on grounds of sexual orientation. Has Article 14 changed this? This was addressed in a prolific discrimination claim brought by Mr McDonald against the Secretary of State. Mr McDonald was forced to leave the RAF after coming out as a homosexual. The Tribunal in Scotland and the European Court of Human Rights interpreted the SDA as including sex orientation, in line with the HRA. However, this was overturned by the Court of Session. They said that the HRA should not be used as a guide to interpretation of statute and, therefore, the SDA does not include discrimination based on sexual orientation, only discrimination based on gender.
If left in any doubt whether this is the correct approach, our Court of Appeal reached a similar conclusion in a claim brought by Ms Pearce, a lesbian teacher, against her school following homophobic taunts from pupils.
The legal position therefore remains unchanged despite the arrival of the HRA: homosexuals and lesbians, at the present time, cannot bring sex discrimination claims on the grounds of their sexual orientation.
Article 8: The right to respect for private and family life
In the case of De Keyser Ltd v. Wilson, the Employment Tribunal struck out an employer's defence to a claim of work-related stress. This the Tribunal said was because of the employer's scandalous behaviour which, they said, breached Article 8. This related to the employer's instructions to the medical expert which referred to Wilson being 'easy to disbelieve' and her possibly 'exaggerating the effect of her alleged illness'. As in the McDonald case, the possible impact of the HRA was diluted as the Employment Appeal Tribunal held there was no breach of Article 8. They also commented that the right to respect for privacy must always be balanced against the right to a just trial.
"The case has been sent back to the Tribunal for a re-hearing now it is clear that comments about Wilson's personal life raised during the course of litigation were not in breach of the Article 8 right to respect for private life."
Article 6: The right to a fair trial
The Post Office dismissed Mr Liddiard, a postman who had been convicted of assaulting a police officer during a World Cup football match between England and Tunisia. Mr Liddiard's unfair dismissal claim was upheld at Tribunal and Appeal stages. At the Court of Appeal it was suggested that our test of reasonableness (whether the employer, following a reasonable investigation, has formed an honest and reasonable belief in the employee's guilt) is not in keeping with Article 6. The Court, however, could see no reason why this test is incompatible with Article 6. This case is another example of where an HRA argument has been raised but rejected by the court. The case has been sent back to the Tribunal for a re-hearing.
So, at the present time and despite HRA arguments, the test of reasonableness in unfair dismissal cases still stands.
So, is there cause for birthday celebrations? The conclusion many observers have reached is that the HRA has had ample opportunity to impact on laws governing the workplace but has failed to do so. More optimistic bystanders may say it's still early days and we are yet to witness its full impact. They point to things to look out for in the future. For example:-
is the one year qualifying period for unfair dismissal claims contrary to the HRA?
how will the HRA impact on the new Employment Tribunal Rules?
what will be the impact of fast approaching domestic legislation outlawing age and religious discrimination?
will the right to freedom of expression widen the scope of legislation protecting whistle-blowers?
And the right answer? Only time will tell.
