Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on November 9, 1998, and mostly came into force on October 2, 2000. Its aim is to “give further effect” in UK law to the rights contained in the European Convention on Human Rights. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of Human Rights in Strasbourg. It also totally abolished the death penalty in UK law (although this was not required by the Convention in force for the UK at that time).
In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice. It also requires UK judges take account of decisions of the Strasbourg court, and to interpret legislation, as far as possible, in a way which is compatible with the Convention. However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is to issue a declaration of incompatibility. This declaration does not affect the validity of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of Parliamentary sovereignty. An individual can still take his case to the Strasbourg court as a last resort.
The incorporation of rights enshrined in the European Convention on Human Rights into UK law by the Human Rights Act has been widely publicised and will inevitably raise employees’ awareness of the possibility of employment-related claims, whether they be legitimate or merely in pursuit of a “nuisance value” settlement. The growth of the employment claims culture resulting from the implementation of the Act will have a knock-on effect on employment practices liability and could prove disastrous for insurers in this sector.
Legal expenses insurance cover, often provided in conjunction with household or motor policies, will have played its part and, with the advent of the Act, insurers may expect even greater reliance on these policies.
EPL policies insure the employer against the defence costs of, and compensation awarded in, employment claims, normally being claims to an employment tribunal. Such policies are couched in carefully drafted terms that now need to be reviewed. For example, in a typical exclusions clause, the insurer will not be liable for any loss arising out of a deliberately unlawful act or omission by the insured, or where a successful claim could reasonably have been anticipated. This raises the question of whether an insured employer is sufficiently up to date with developments in employment law so as to be able to identify the type of risks posed by the Act. The insured will need to review documentation and practices to ensure that it caters adequately for the effect of convention rights.
At present, legal aid is not available for claims in the employment tribunal.
However, Article 6 of the convention provides that everyone is entitled to a fair and public hearing by an independent and impartial tribunal.
With the increased complexity of employment law, it is statistically acknowledged that an employee representing himself or herself is disadvantaged if their employer is legally represented, as is often the case. Thus, the pressure on the government to extend legal aid to employment tribunal proceedings is likely to grow.
Having established that the employment claims culture is continuing to gain momentum, does the Act bring with it a new raft of potential claims?
The answer depends partly on the type of employer. The Act can be relied on directly against public bodies, but not, in the main, against private employers.
Indirect effects
So, in the case of a private employer, what difference will the Act make?
The answer is that the effect will be indirect. This is because existing employment legislation must be construed “so far as it is possible to do so” in a way that is compatible with convention rights.
Sex discrimination claims can be used as an example. Currently, UK legislation does not extend to discrimination on the basis of sexual orientation.
Article 8 of the convention, however, states that: “Everyone has the right to respect for his private and family life.” Reliance on this Article brought success for Mr Beckett and other gay colleagues subjected to discriminatory treatment by the Ministry of Defence. The European Court of Human Rights held in that case that the MoD’s actions breached Article 8.
An employee of a public body will, therefore, be able to rely directly on Article 8 if discriminated against on the basis of his or her sexual orientation. Will tribunals, in the case of private employers, be persuaded that the Sex Discrimin-ation Act should be construed as a matter of convention law to include discrimination on the grounds of sexual orientation? Time and case law alone will tell, but this does seem to be a real possibility.
Article 8 also presents risks in the context of unfair dismissal claims.
Dismissal (whether actual or constructive) stemming, for example, from monitoring an employee’s e-mails, the use of CCTV, refusal to undergo searches or medical examinations, all face potential scrutiny by tribunals in the light of Article 8.
A breach is likely to be taken into account by tribunals when asking whether dismissal was reasonable in all the circumstances of the case (in other words, fair or unfair). The insured should, therefore, satisfy itself that its practices and procedures serve a legitimate purpose and can be justified. Obtaining express consent to, and providing an explanation for, acts that invade privacy, although not an absolute defence, is a starting point for employers and might well be included as a policy condition.
Articles 9 and 10 also have implications. Article 9 protects a person’s right to hold, practise and observe religious beliefs. Currently, the Race Relations Act does not extend to religious discrimination, but the dismissal of an employee for reasons stemming from religious beliefs or practices, in breach of Article 9, could well be seen as unfair by a tribunal, even if the Act does not ultimately extend the scope of UK discrimination legislation to religion.
Freedom of expression
Article 10 confirms a person’s right to freedom of expression. What then of an employee who is dismissed for contravening a dress code or for expressing views about his employer or the actions of his employer? (see article p21) A tribunal is likely to be persuaded to assess the fairness of such a dismissal in the light of Article 10, by balancing an employee’s desire to express his personality or beliefs with the employer’s wish to project a certain image or to protect some other interest.
An insurer making enquiries of a prospective insured before accepting cover, typically a review of contracts, policies and procedures, should now be aware of this potential for claims stemming indirectly from the Act. Policy wording may well have to be revised accordingly.
With small to medium-sized businesses in particular fearing the impact of a fast-growing body of employment rights – a trend that is undoubtedly set to continue and accelerate – the protection offered by EPL policies has never been more important.
Note: The article above may not contain up-to-date information.
See also…