One of the most talked about Conservative policies since the election is the proposed repeal of the Human Rights Act and its replacement with a British Bill of Rights and Responsibilities. This is not a comment about the rights and wrongs of that policy, or the constitutional mechanics behind it, but about the impact of this proposed change on employment law.

It is relatively rare that human rights law and employment law intersect. Some of the most obvious areas where this does happen are the right to privacy in the workplace, the right to freedom of association in relation to political opinion and unions, and the right to manifest religious belief. In our view the key area that is likely to be affected by this change is discrimination law, particularly in relation to political and religious freedom, as it is here that human rights arguments have met with most success.

For example, in the 2012 case of Redfearn v UK it was held that UK law did not adequately protect the right to freedom of expression and assembly of a bus driver who was dismissed on the basis of his BNP membership (his passengers had no complaints about his conduct). This was because there was a qualifying period before he had the right to claim unfair dismissal. This led to the law being changed so that the right not to be dismissed or subjected to detriment for political affiliation is a “day one” right.

In 2013 the European Court of Human Rights decided four linked cases relating to religious belief. In Eweida v UK, the most widely reported of those cases, it was held that the wearing of a cross at work was, in some circumstances, a human right to which the UK was required to extend appropriate protection. In the other cases it was held that a registrar of births marriages and deaths was not discriminated against by being required to register civil partnerships, and that a relationship counsellor was not discriminated against by being required to counsel same sex couples.

It is not clear that the outcome of most discrimination cases would have been any different in the UK without the Human Rights Act. However, under the new proposals it is intended that Britain’s courts will no longer be required to take into account rulings from the European Court of Human Rights in Strasbourg, and every judgment that a UK law is incompatible with the European Convention on Human Rights (“ECHR”) will be treated as advisory (though while the UK remains a party to the ECHR British citizens will have the right to take the UK to court in Strasbourg).

There is further uncertainty in relation to the new proposals. These intend to limit the use of human rights laws to the “most serious cases”, which seems to us to be potentially problematic. Will employment law be deemed “serious” enough to merit the application of human rights? It would perhaps be a brave politician who described someone losing their job because of discrimination as “trivial”.

There is a lot that is at present unclear about the Conservatives’ proposals for human rights, and we have yet even to see a draft of a bill of the proposed legislation. However, it does not appear that the practical impact for employers will be particularly significant. Therefore while the abolition of the Human Rights Act may have fundamental consequences for other areas of law, in the field of employment it may be something of a non-event.

Posted on 22/05/2015 in Legal Updates

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