The Pharmaceutical Journal Vol 265 No 7109 p245-247
August 12, 2000 Special feature

Employment law update

Human Rights Act 1998

By Jacques Smith

European Convention on Human Rights will be incorporated into English law on October 2 when the Human Rights Act 1998 comes into effect

All employers need to be aware of the potentially far-reaching new rights conferred on all employees as a result of the Human Rights Act 1998. The aim of the new Act is to secure for individuals various rights which are seen as fundamental for the promotion of tolerance, reasonable action and fair treatment to all. Although the Act is not specifically targeted at workers' rights, there is no doubt that many of the rights conferred by the Act will arise in the context of the employment relationship. The rights created by the Act will complement and strengthen similar rights secured by existing United Kingdom legislation, such as the sex, race and disability discrimination Acts. In practice, where any claim is brought by an employee against his or her employer under the existing legislation, the court or tribunal will also examine and take into account any infringement of the new rights conferred by the Act. It is therefore essential for all employers to be aware of the rights contained in the Act, and to review their policies and procedures to ensure that the rights of their employees (whether full- or part-time) are not infringed.

New rights include the right to privacy and to freedom of expression

New rights

The rights created by the Act are widely stated and broad ranging. They include the right to life, prohibitions of slavery, forced labour and torture, and the right to freedom of expression and to receive a fair trial.
While one would hope that prohibitions of torture and slavery are unlikely to be of concern in pharmacies, there are several rights created by the Act which will clearly have a direct and immediate impact on the relationship between employer and employee. These are:

Private and family life Here the Act provides that everyone shall have the right to respect for his private and family life, his home and his correspondence. This provision is likely to have an impact on the employer's collection of data concerning employees. For example, information provided by an employee during the course of a recruitment process should not be used by the employer for any other purpose, such as in a dispute over dismissal.
Another example would be the collection of medical data on employees, which should be undertaken with caution. Here it will become vital to obtain an employee's consent to the collection of the information, and information must then only be used for the purposes for which it was obtained.
Employers will also need to remember that information received from a prospective employee is often of a private and personal nature. Employers will need to take steps to ensure that this kind of information is kept completely confidential.

Freedom of thought This part of the Act protects the right to hold religious beliefs and the right to worship and practice, in public or in private. Clearly, this will impose an obligation on employers not to insist on working practices which might infringe these rights.

Freedom of expression This right is likely to make an impact in the areas of confidentiality and dress codes at work. For example, in the event that an employee is dismissed for expressing particular views about his or her employer, an employment tribunal would have a duty to assess the fairness of the dismissal in the light of the right to freedom of expression.
Turning to the issue of dress codes at work, the right to freedom of expression is likely to strengthen the employee's position. At present, tribunals will generally consider a dress code to be enforceable if the employer can show that the code is proportionate and necessary having regard to the functions undertaken by the employee, rather than being merely reasonable. While the tribunals are likely to continue employing this test, dress codes will probably come under more critical scrutiny given that the right to freedom of expression will be enshrined in statute law.

Human rights and dismissal

While it will not be possible for employees in the private sector to bring claims against their employers solely in relation to an infringement of the new rights, if the employee brings a claim arising out of existing UK law (for example, an unfair dismissal claim), the tribunal will be under an obligation to interpret the law in accordance with the new rights.
Therefore in simple terms, every employer will need to be aware of the rights and how their actions or practices may possibly infringe them, since any tribunal judging their conduct will be under an obligation to consider that very question.
It is therefore essential that all employers now assess their current practices and procedures in advance of the implementation of the Act.