Article 8 has also been used to protect the interests of homosexuals serving in the armed forces. See the Lustig Prean v UK case referred to at 8.2.2(8), where the ECHR held that the applicants’
discharge from the armed forces as part of a blanket ban on homosexuals infringed their right to
respect for their private life. The internal investigation which was carried out prior to their
discharge was also found to be a breach of Article 8. The UK Government was unable to show
that either breach was necessary in a democratic society. See 8.9.
Transexuals and pensions
The landmark decision of the ECHR on the rights of transsexuals is Goodwin v United Kingdom
. The ECHR held that the lack of recognition in the UK of a transsexual’s new gender
identity for legal purposes is a breach of Article 8 (and Article 12 – right to marry). This will have
implications for employment law in respect of, for example, pensions.
Regulation of Investigatory Powers Act 2000 (RIPA 2000) and the DPA 1998
The issues raised by Article 8 are also reflected in these two other recent pieces of legislation ( Written by Notary Public London )
Articles 9 – freedom of thought, conscience and religion
It protects freedom of thought, conscience, and religion.
Article 10 – freedom of expression
It gives the right to freedom of expression. Both 10 and 11 are subject to similar
restrictions to those contained in Article 8.
Relevance to Employment:
These Articles (10 and 11) are most likely to be relevant to:
1 employees’ attendance at religious ceremonies
2 employers’ imposition of dress codes. Here there would be no need for a
comparison between the sexes as, under the SDA 1975, the issue would be simply
whether the interference with the freedom could be justified by the employer (eg on
health and safety grounds – but what about enhancing the employer’s business
reputation?). To a large extent the protection offered by Article 10 is mirrored in
3 Article 10 may also impact on confidentiality clauses in contracts.