Tag Archives: EFFECT ON EMPLOYMENT LAW

EFFECT ON EMPLOYMENT LAW

Article 6 HRA – fair and public hearing – The Abogados de accidentes blog posts

This creates a right to a ‘fair and public hearing within a reasonable time by an independent and

impartial tribunal established by law’.

This will (arguably) not apply to internal disciplinary procedures, but Tehrani v United Kingdom

Central Council for Nursing, Midwifery and Health Visiting [2001] establishes that the position is

different where there are disciplinary proceedings which determine a right to practice a

profession

Article 6 does apply to employment tribunals and the EAT, although there is some suggestion in

the Strasbourg jurisprudence that disputes relating to the employment rights of public officials

are not ‘civil rights and obligations’ but are disputes about the rights of civil servants

(see Neigel v France (2000). However, while the UK courts have to have regard to ECHR case-

law, they are not obliged to follow it.

Article 6 may be used to bring a claim and/or challenge areas such as:

1 limitation periods;

2 qualifying periods;

3 funding (in Airey v Ireland (1979) the ECHR found a breach of Article 6 where legal aid

was not available to assist a litigant who wished to apply for a judicial separation);

4 refusal to grant adjournments (see Teinaz v London Borough of Wandsworth

[2002])

5 delays in hearings (eg, it may allow a challenge to the lengthy delays in equal pay

cases, see Somjee v United Kingdom [2002]);

6 representation (see Dispatch Management Services (UK) Ltd v Douglas and

Others [2002]);

7 independence and impartiality (the House of Lords held in Lawal v Northern

Spirit Ltd [2003]) that there is a real possibility of bias where counsel appears as

representative in front of a division of the EAT where he has previously sat as part-time

judge with one or both wing members

8 fairness in terms of ‘equality at arms’ (eg the right of both parties to present their

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cases without being placed at a substantial disadvantage when compared to the

means of and resources available to the other party).

Article 8 HRA – respect for private and family life and correspondence (the Privacy Article)

This provision gives a “right to respect for private and family life and correspondence except for

Article 8(2) ‘interference’ by a public authority which is in accordance with the law and is

necessary in a democratic society in the interests of national security, public safety or the

economic well being of the country, for the prevention of disorder or crime, for the protection of

health or morals or the protection of the rights and freedoms of others.”

Article 8 may be used to bring a claim and/or challenge areas such as:

1 opening ‘private and confidential’ mail addressed to the employee: It may allow

employees to challenge over-intrusive policies by employers. For example, if the

employer opens this type of mail, the employee may be able to bring a claim

2 email monitoring: if employers monitor employees’ emails without telling them and for no

good reason, employees may have a claim under Article 8. If they are public sector

employees, they may (see 6.2.20 and 11.3.2) have a free-standing claim under Article

8. If they are private sector employees, they may be able to rely indirectly on Article 8 in

an unfair dismissal or breach of contract context.

Ultimately, if the government does not try to regulate over-intrusive policies by

employers, employees may be able to bring a claim against the government for failing to

protect their Convention rights (see Halford v UK [1997])

3 pre-employment screening or testing without proper justification:

eg: there will be some groups of workers where there is a genuine risk that they

could infect others – such as surgeons)

eg, e/er asks questions about whether an applicant/employee is HIV-positive,

that may itself give rise to an Article 8 complaint.

4 searching employees: Article 8 may also be relevant to the question of whether

employers can search their employees or test them for drugs (see O’Flynn v Airlinks

Airport Coach Company Ltd (2002)

5 drug testing: