Human Rights

Front 1

International

Back 1

- Hounga

- ILO Assembly

- EU Charter

- Lober and Novitz

Front 2

Hounga

Back 2

Since Hounga, the courts are far more inclined to rely on international instruments when resolving human rights issues in employment law

Front 3

ILO Assembly Rights 1948

Back 3

Protects the right to assembly, association and collective bargaining.

Front 4

EU Charter

Back 4

Directly applicable to the UK but has had very limited effect.

Front 5

Lorber and Novitz

Back 5

Freedom of association is a virtue of the HRA. S3 requires domestic law to be read in line with the ECHR and S4 requires public courts to act compatibly with the ECHR. There is also a general presumption in favour of the UK following it's international obligations. Yet the ESC and EU charter remain neglected

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Article 8

Back 6

- Niemitz

- Nikon

- Halford

- Ford

- Pay

- Mantouvalou

- Ford

Front 7

Niemitz

Back 7

Police searched the office of one of their employees which was considered to be not proportionate and not a legitimate aim. Case recognised that private life is not limited to an 'inner circle' and extends to cover working relationships in the office

Front 8

Nikon v France

Back 8

For example, an employer opening an employee's letter clearly labelled 'private' is an invasion of privacy due to being a private affair within the working sphere.

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Halford

Back 9

Employers had leaked the information of an employee to the press and intercepted her calls. This was held as a breach. Calls on the telephone do come under private life. However, the case recognised that the employer can remove the expectation to privacy within the contract scope. As H was never warned that her calls would be intercepted, she had an expectation to privacy. The fact that cameras were set up in the office did not preclude expectation.

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Ford

Back 10

Halford is a far more cautious approach than Niemitz. It entitles that the right to privacy can be presumptively removed where the employer denies the employee a 'reasonable expectation of privacy'. This is the idea that management decisions can override rights

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Pay v UK

Back 11

Sex offender probation officer dismissed for selling BDSM products online and appearing in videos. The EAT held that he had no right to private life for actions displayed on a public forum. ECHR ruled that private life does extend to acts performed in the public sphere. But here the interference was justified to protect the public image of the employer.

Front 12

Mantouvalou

Back 12

The UK tribunal approach is flawed as it has no concept of spatial privacy recognition. The current conceptualisation of private life is therefore erroneous. The dismissal in Pay's case came about via an opposition to his morals and lifestyle, there was no reference or mention made to his performance.

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Ford

Back 13

The HRA claims to protect individuals lifestyles of employees, but it is indicative here that these lifestyles cannot be of a 'public nature'. There is an important consideration given to upholding the morality of the employer.

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Privacy Conception

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- Niemitz: Ford

- Halford: Ford

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Niemitz: Ford

Back 15

Privacy is no longer limited to just an inner circle, it now encompasses the development of relations at work. However it is considered that these relations must be 'actual' and not 'hypothetical'.

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Halford: Ford

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The expectation to privacy can now be deferred in favour of management primacy and prerogative. The expectation to privacy can now be removed by contractual clauses within the employment contract. This is similar to the US approach: E.g. lockers and padlocks provided by the employer has no expectation of privacy.

Front 17

Article 8 and dismissals

Back 17

- Sidabras

- Schuth and Obst

- IB v Greece

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Sidabras

Back 18

Ex-KGB members dismissal was held to be a breach of article 8. A far reaching private sector ban encroached on the privacy of the employee. There was no legitimate aim pursued in banning just one single career. The collapse of the USSR had occurred 10 years prior.

Front 19

Schuth and Obst

Back 19

Extra-marital affairs for employees of the Catholic church were treated differently depending on the facts of the case. An organist's dismissal was a breach of article 8 as the dismissal had not considered his opportunities to change career. The director of European relations however was in a position to damage the reputation of the church so the dismissal did not breach article 8.

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IB v Greece

Back 20

Wherethe employee told colleagues that he was HIV positive, dismissal was held toviolate Article 8. The Court reiterated the fact that the notion of ‘privatelife’ is a broad concept, covering the physical and moral integrity of theperson which sometimes encompasses aspects of an individual’s physical andsocial identity. The court's decision aimed to tackle HIV stigmas.

Front 21

Article 8 and English dismissals

Back 21

- S108 ERA 1996

- X v Y

- Freedland

- Iceland

- Turner

- O'Flynn

- McGowan

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S108 ERA 1996

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UK not comfortable with thewide conception of private life adopted by the ECtHR. Under s108 ERA1996, if less than 2YC = no claim against unfair dismissal. Test is simply based on whether the employer had reasonable belief after areasonable investigation – not on whether the employee in fact did the misconduct.

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X v Y

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Sexualactivities in a public toilet. Did not fallwithin the remit of Article 8 as the conduct was committed in public and ofa legitimate concern to the employer. Court did not reach asecond stage in their reasoning, involving the exploration of theeffect of human rights law on the test of fairness in dismissal. Also raised issue that article 8 should be enforced between individuals.

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Freedland

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Expresses concern about the future of direction andmethodology of regulation of workers’ privacy in English employment law

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Iceland

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In unfair dismissal law, the test for whether the employer has actedreasonably was put forward in the Icelandcase which reiterated that the employer must’ve acted within the “band ofreasonable responses”.

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Turner

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Unfair dismissal tests needs no change when Article 8 is engaged as a result of the dismissal. Concluded thatthe test provided the same level of protection as that offered by Article 8.Illustrates the reluctance of the domestic courts to interpret the right. Also, no right to reputation damage if employee is the cause of it.

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McGowan

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An employer who suspected an employee of falsifying time sheets used surveillance on the employees home. This was held to be completely proportionate as the aim could not be achieved with workplace CCTV.

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Article 9

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- Eweida

- Collins

- Copsey

- Ahmad

- Pearson

- Chaare Shalom

- X v UK

- Pichon v France

Front 29

Eweida

Back 29

Eweida, Chaplin, Landele, MacFarlane. Impinging on religious rights may only occur where the right impinges on the rights of others. BA corporate image was not legitimate to impinge on article 9. NHS health and safety was legitimate. Equal opportunities for marrying gay couples was legitimate. Pursuing policy of equality for gay couples was legitimate.

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Collins

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Employers will generally only care about religious rights when it impacts on their working hours. There is generally a weak protection of article 9 in the UK as a result of business primacy trumping the rights of people's religion. These rights ought to be better pursued under the EQA.

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Copsey

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The refusal to accept Sunday shifts due to Christian beliefs was a legitimate reason to dismiss the employee. Argued that he could have sought a job which was conducive to his religion.

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Pearson

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There will generally be a violation of article 9 found where there is an interference with a compelling manifestation of that religion. This provides a workabletest which excludes remote burdens but which is broad enough to respond to thereality of religious belief and practice.

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Chaare Shalom

Back 33

The refusal of a licence to produce specialist meat for Orthodox jews was not a breach as the meat could be imported from Belgium

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X v UK

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A subjective assessment of the breach may be warranted. I.e. some people may think headscarves are a manifestation, some may not.

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Pichon v France

Back 35

Dismissal of an employee for refusing to work due to a clinic selling the contraceptive pill was not a breach of article 9

Front 36

Article 10

Back 36

- Redfearn v UK

- S108 (4) ERA 1996

- Sanchez v Spain

- Matuz v Hungary

- S47A and S103 ERA 1996

- Pearson

- Ewing

Front 37

Redfearn v UK

Back 37

Bus driver suspended for his affiliation with the BNP as a councillor and he drove mainly ethnic asians and there was a fear they would feel intimidated. Held there was a breach of article 10. He had a good employment record, no consideration of moving him to a less customer based role. Article 10 is engaged to protect all political views, no matter how offensive.

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S108 (4) ERA 1996

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This was introduced which provides thatthere is no need for two years’ continuous employment if the employee isdismissed for political opinions.

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Sanchez v Spain

Back 39

An offensive cartoon published in a TU flyer was considered to be a personal attack on the employer and not an expression of political views. Article 10 will not be engaged where it impinges on the reputation of others.

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Matuz v Hungary

Back 40

Journalist dismissedafter publishing a book concerning the alleged censorship of a company. Thiswas held to interfere with his right to freedom of expression, especially asthe book concerned a matter of public interest. This case essentially indicatesthat where the expression furthers public debate, the expression will beprotected as it is seen to be at the core of democracy.

Front 41

S47A and S103 ERA 1996

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UK has adapted its law to protectindividuals from unfair dismissal with regards to whistle-blowing anddisclosure which is in the interests of the public and of political nature

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Pearson

Back 42

A workplace is a logical place for discussion aboutpolitical and social matters and this has been reflected in the protectionoffered by the ECHR.

Front 43

Ewing

Back 43

The HRA fills gaps in the law of human rights but overall has a very limited impact. The duty on the courts to interpret the law in line with the ECHR is limited as the narrow interpretation of rights are not absolute. Convention rights are also deaf on workers and TU rights indicating the need for constitutional reform.