Every person’s basic human rights and freedoms are protected by the law and are based on concepts such as dignity, fairness, respect and equality. The Human Rights Act 1998 incorporates the guarantees under the European Convention of Human Rights into UK domestic law. Under the Convention, there are a range of protected rights including those to life, from discrimination, to privacy and to impartial trials. The Human Rights Act protects workers’ rights and freedoms so long as they work in the public sector (such as the Courts, local authorities, NHS organisations, the police, the prison service and education authorities). Those in the private sector are not covered by the Human Rights Act but many of these rights are incorporated into general employment law (such as the Equality Act 2010), which applies to all employees. Any decision made by an Employment Tribunal has to follow the principles set out in the Convention. Our specialist employment lawyers can assist your business on all aspect surrounding human rights law to ensure that you are complying with all relevant regulations. Where a human rights issue has arisen, we can assist you in dealing with the whole process including advice and representation through any court proceedings.
Human Rights Act 1988
Parts of the Human Rights Act will be more relevant in the workplace than others, for example, the prohibition of discrimination under Article 14. This prevents employers from using information about their employees as a basis to discriminate. Article 14 states that the Convention rights must be protected without discrimination based on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status (thought to include disability, mental status and sexual orientation).
Employees also have the right to respect for a private and family life under Article 8. This states that “a person has the right to respect for their private and family life, their home and their correspondence”. This means that employees have the right to a degree of privacy in the workplace. The European Court of Human Rights has ruled that employers should "not reduce private social life in the workplace to zero". However, employers can monitor personal communications so long as they follow certain guidelines. Employers are permitted to monitor certain communications within the workplace but they generally have to make employees aware of the monitoring before it occurs. An employer can monitor emails, internet access, telephone calls, data and images. However, an employee has the right to see any information that is held about them that has been gained by monitoring and this is further enshrined in the new General Data Protection Regulations that were introduced in 2018.
Employers do not have the right to monitor their employees everywhere since this would undermine the right to privacy. For example, the office toilets are an area that should not be monitored. An issue regarding reasonable monitoring is the use of smartphones with email and internet access, which is blurring the boundaries of what can be monitored. Disclosing personal information to a third party can also breach this right, particularly if it is sensitive information such as confidential medical information.
The following rights are also protected for employees under the Act:
- The right to a fair trial under Article 6. This can include internal or external hearings including disciplinary or professional tribunals, grievance procedures or compensation claims.
- The right to freedom of thought, conscience and religion of their choice under Article 9. It is unlawful to discriminate against an employee because of their religion or beliefs.
- The right of freedom of expression under Article 10. This includes the right to hold opinions as well as receiving and imparting the ideas to others.
- The right to freedom of assembly and association under Article 11. This includes the right to join a trade union.
Protection from other legislation
All employees are broadly protected by other relevant legislation, such as the Equality Act 2010. This offers protection to those in the workplace (as well as other situations) from discrimination, harassment and victimisation due to certain “protected characteristics”, which are:
- Gender reassignment
- Marriage and civil partnership
- Religion or belief
- Sexual orientation
Both employees and job applicants are offered protection under the Act in relation to these characteristics. There are four main types of discrimination that are covered under the Act:
- Direct discrimination, which involves one person discriminating against another due to their protected characteristic.
- Indirect discrimination, which can occur where an organisation has a rule or policy that unfairly affects a person with a protected characteristic as opposed to those without one.
- Harassment, which occurs where someone is treated in a way because of their protected characteristic that violates their dignity or creates a degrading, humiliating or hostile environment.
- Victimisation, which is where you have tried to take or taken action under the Equality Act or supporting someone doing this and then are treated unfairly.
How to help protect your business
Taking preventative measures before an issue arises can ensure your business is protecting itself in relation to human rights issues. Making sure you understand how your business is possibly affecting your workers’ human right is very important. You should also ensure any groups of workers that are particularly at risk. By ensuring that you have an effective complaints and grievance procedure in place that is fair and transparent will demonstrate you are respecting your workers’ human rights. Having an effective internal complaints procedure could help you avoid lengthy disputes that can take a lot of time and money. Our expert lawyers can advise you on your complaints and grievance procedures to make sure that it is suitable for purpose and protects your business interests correctly.
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At Lewis Nedas, our Employment Law Solicitors have over 25 years’ experience advising and representing national and international companies. Our Employment Lawyers have joined the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues, including human rights claims.