British bosses can be human, too

Despite the outraged tabloid headlines, the Human Rights Act will deliver benefits for workers.
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The Independent Online

The tabloid press has dubbed the Human Rights Act 1998 a "nutters' charter" but its real impact will be felt at work where sane employers will tread carefully when it comes to employees' rights. The new law represents a shift in the balance of power from employer to employee. Intrusive employers will have to think again about their fondness for surveillance. It will no longer be possible for instance for a boss to tap into his employees' e-mails whenever the mood takes him. The right to privacy under the legislation means that he will have to have a good reason for snooping.

The tabloid press has dubbed the Human Rights Act 1998 a "nutters' charter" but its real impact will be felt at work where sane employers will tread carefully when it comes to employees' rights. The new law represents a shift in the balance of power from employer to employee. Intrusive employers will have to think again about their fondness for surveillance. It will no longer be possible for instance for a boss to tap into his employees' e-mails whenever the mood takes him. The right to privacy under the legislation means that he will have to have a good reason for snooping.

Vodafone's recent decision to dismiss a group of its employees for downloading pornography from the internet and then spreading the images around the office would probably continue to be lawful. Companies, however, would be ill-advised to monitor e-mails on a routine basis. Alison Halford, the former Merseyside Police assistant chief constable, won her case for protection against phone-tapping at the European Court of Human Rights.

She had been told she could use her office telephone privately for the employment case she was bringing against the force, but the police bugged the line. The judges in Strasbourg ruled that this had breached her right to a private life.

Nevertheless, lawyers stress that Article 8 is a qualified right which may be limited "in accordance with the law" and as is "necessary in a democratic society".

Oftel, the telecommunications watchdog, has provided guidance as to the basis on which telecommunications may be monitored - provided this guidance is adhered to it is unlikely that a court or tribunal would consider an employees' human rights to be infringed.

From yesterday, workers will have a greater degree of freedom over what they wear. For instance an employer would have to justify a difference in dress codes between the genders. If female staff wear blouses without ties, then men may well be able to wear shirts without ties. Could this mean the end of the City suit? Unlikely say Matthew Saunders and Stephen Roberts of law firm, Stephenson Harwood: "Article 10 does limit the right to freedom of expression but it also makes it subject to a long list of formalities, conditions, restrictions and penalties including those necessary for the prevention of disorder or crime, the protection of health or morals and reputational rights of others."

More seriously, the legislation will call into question the ability of companies to undertake random drink and drug tests. Even train operating companies might have to justify such practices.

In sexual harassment cases the alleged harasser will be less able to rely on references to the victim's sexual history because it could amount to a breach of privacy. Less certain is the impact of the freedom of association clause contained in the legislation on the practices of trade unions. Richard Arthur of Thompsons solicitors believes it could limit the right of Governments to interfere with union rules - thus allowing union executives for instance to appoint their general secretaries rather than having to call a ballot of the whole membership.

Under Article 8 covering the right to respect for private and family life employees will be given greater ability to resist unreasonable demands by their employers.

In a recent case in France, a family man was able to refuse to move 800 miles to another workplace. But from yesterday sex discrimination legislation only covered issues of gender, but under Article 8 it is expected that companies will no longer be able to discriminate on the grounds of sexuality. Protection against discrimination on grounds of race is expected to be extended to religion.

Under the right to a fair trial, employers will have to ensure that disciplinary hearings are impartial and allow an individual to be adequately represented.

Employment tribunals will need to be more meticulous in cases of dismissal for misconduct to ensure that employers have accumulated sufficient evidence to back up their decision. "To avoid infringing the Act care will need to be taken to keep restrictions to a bare minimum and those imposed must be capable of being justified for a good reason - an obvious example would be a ban in smoking in the work place being justified for health and safety reasons," say Saunders and Roberts.

It is also worth remembering that Human Rights under English law is not a new concept. The Convention was signed in November 1950 by the Governments of the Council of Europe in response to the Human Rights abuses of the Second World War. It is a statement of civil and political rights imposing obligations on states, not upon individuals. States, however, have an obligation to secure protection of the fundamental rights provided for under the Convention.