The Human Rights Act 1998 serves to incorporate the guarantees under the European Convention on Human Rights into UK domestic law, including the employment field. The Convention enshrines a range of rights relating to life, personal freedom, fair and impartial trials, private and family life, and freedoms of thought, conscience and religion and freedom of association. There is also a broad provision against discrimination on the basis of:
- gender reassignment
- marriage and civil partnership
- religion or belief
- sexual orientation.
The effect of the Human Rights Act 1998 is that individuals can bring claims in domestic courts against public bodies, including the police, education authorities, hospitals and local authorities, that their Convention rights have been violated. They can rely on the case law of the European Court of Human Rights.
In many cases a private entity will be performing a public function. This will usually include cases where a public authority procures a private entity to perform one of its functions. As a result, the private entity can also be subject to claims on the basis of Convention rights.
It is imperative to note that even if a private employer does not fall within either category, they can still be subject to claims under other statutory protections for employees, including the Equality Act 2010 and Data Protection Act 1998.
Inviolable and qualified rights
Certain rights, such as against torture and inhuman and degrading treatment, can never be justifiably infringed. These are known as inviolable rights. On the other hand, rights such as freedom of association, speech, liberty and religious adherence can be properly restricted if such measures satisfy the following:
- Prescribed by law: the laws authorising the measure must be precise, certain, transparent and accessible to citizens. It must be foreseeable that one’s conduct is sanctionable. If a public authority is afforded discretion, the scope must be clearly spelled out.
- Necessary in a democratic society: the measure must be one that is indispensable and in response to a pressing social need that would occur in a modern democracy.
- Proportionate in light of the aim pursued: the measure must have been the least restrictive means of achieving the purported aim.
- Fall within the state’s “margin of appreciation”: case law of the European Court of Human Rights has determined that states are afforded some leeway where there is a lack of Europe-wide consensus on an issue.
Under the Human Rights Act 1998, a court has the power to award monetary damages as “just satisfaction” for a breach of convention rights. A court can also strike down as incompatible with Convention rights any non-primary legislative acts and regulations.
Jurisdiction for claims
The provisions of the Human Rights Act 1998 extend to all persons present within the UK, including non-citizens and persons without lawful immigration status.
Employment Law - Information on Fees
For information on fees and funding relating to Employment Law cases, please see our information page.
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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.