It could be argued that the employment tribunal system is a breach of Article 6, which is demonstrated in Smith v Secretary for Trade and Industry3 and in Scanfuture UK ltd v Secretary for State for Trade4 which led to the procedures

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The European Convention for Protection of Human Rights and Fundamental Freedoms is more commonly known as ‘the Convention’ was introduced by the Council of Europe in 1950 and was then enforced in 1953.  The reason for the Convention being introduced was to prevent events which occurred during the World War Two from occurring again.  The aim of the Convention was to protect individuals’ rights against infringements by the state.  The Human Rights Act 1998 developed Convention rights into UK domestic law through a restricted basis, the Act came into force on 2nd October 2000.  Human Rights Act is set  to have an immense amount of protection for both private and public sector employees.  It means individuals can ascertain their Convention rights against the state in a UK court and no longer have to go to Strasbourg.  However if domestic legislation is unambiguous and can not be interpreted in accordance with Convention, the domestic statute takes precedence.1  It’s unlawful for public authority to act in a way which is incompatible with Convention rights.  There are situations were the court has decided that primary legislation is incompatible with Convention  rights which then leads to a ‘declaration of compatibility’ being issued.  An Employment Tribunal can not make a declaration of incompatibility, therefore employment cases have to wait until they have reached Court of Appeal.  Enforcing the Convention has had many financial and practical implications.  An example of this is R.V. Admiralty Board of the Defence council, exp. Lustig - Prean.2  “Fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.  Article 6 is the right to a fair trial, the implications which this article will have on employment law is in cases where employee’s feel they have unfairly been dismissed by their public sector employer.  It could be argued that the employment tribunal system is a breach of Article 6, which is demonstrated in Smith v Secretary for Trade and Industry3 and in Scanfuture UK ltd v Secretary for State for Trade4  which led to the procedures which were previously in place since 1999 for the appointment of lay members to be changed, it was held by Employment Appeal Tribunal that previous procedures breached Article 6 of the Convention.  The proceedings must conclude after 7years of this will amount to a breach of Article 6 through delay factor.  Although each case in assessed individually in the light of the circumstances concerning the length of the proceedings.  It must be noted that Article 6 does not protect against internal disciplinary proceedings.  This Article is similar to Article 79 of the Fair Employment and Treatment (NI) Order 1998.

Article 8 of the Convention protects the right to respect private and family life and correspondence.  The relevance of this Article to employers is in situations where there is an encroach into the privacy of their workers through monitoring telephone conversations, email communications, video surveillance, employee searches, drug or alcohol tests.  Currently privacy  is not well protected under UK domestic law.  The court has developed the rights under Article 8 for  it to no longer be confined to relations between individuals and the state and public authorities but the ECHR has enforced a positive obligation on the state to ensure observance and enjoyment of the right without discrimination.  There are numerous examples of case law which depicts Article 8 implications.  In Niemitz v Germany5 deals with the right to privacy within the office; the case dealt with searches which were conducted in a lawyer’s office.  The court held that it was a breach of Article 8, stating ‘to interpret the words “private life” and “home” as excluding article in a professional/business activities/premises would not be constant with essential object and purpose of Article 8’.  Another breach of Article 8 in the workplace dealt with the absence of domestic by dealing with employer’s right or lack of right to “tap” telephone calls at work.  The case which highlighted this issue was Halford v UK6 changed  the facts of this case were a senior police officer had come to the conclusion that her lack of promotion was due to gender disqualification so she put in a sex discrimination claim; she alleged that her telephone was “tapped” to obtain evidence about her claim.  The ECHR held “tapping” an office telephone, was “prima facie” breach of Article 8, unless the employee had preciously warning that the employer was “tapping” the phones.  This case had significant implications concerning Article 8 and employer surveillance.  Interfering with emails at work may prima facie be breaching Article 8, the only justification for this offence will be to protect others for example an offensive email which can amount to harassment.  There are no leading cases in the UK domestic law regarding this but the French Supreme Court case of Onof v Nikon France7 states that meddling with employee’s emails is a breach of Article 8 regardless of the fact that the employer may have prohibited personal use of facilities. But the position has been clarified in UK law through Telecommunications (Lawful Business Practice) (Interception of Communications) Regulation 2000 deals with the use of business resources for employee’s own personal use.  Prior to this regulation there was no protection for employee’s or employers regarding telecommunications mostly due to the fact that the courts could not have predicted the boom which occurred in this industry.  The use of CCTV or other methods used for security procedures at work is found to breach Article 8 but it can be justified if it was necessary to protect health or rights of others.  In the case of XXX v YYY8 was when video evidence was used to support a sexual harassment claim it was seen not as a breach of Article 8.  In the case Leander v Sweden9 considers the storing of information about a job applicant in secret police register and releasing it to prospective employer, the claimant thought this breached his right to privacy.  The court held that this was not considered a breach when It could be justified as “necessary in a democratic society”.  But the difficulty in terms of this came when vetting candidates for positions which are not seen as important to national security will be more problematic to justify.  Also the issue of whether drug and alcohol tests breach Article 8,  if such the tests insure public safely then they are not deemed a breach.  The following two cases exhibit were the tests were warranted.

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Whitefield v GMC10concerns a GP unsuccessfully appealing against a condition of his registration by General Medical Council to have these tests.  O’Fylnn v Airlinks Airport Coach Ltd11 were an employee argued unsuccessfully against random drug test, claiming a breached Article 8.  Another element to Article 8 is public or private activity and how they effect employee’s in workplace. X v Y12 is an example were an employee was dismissed on account of his arrest for gross indecency outside of work hours.  The court held the dismissal was fair and did not breach Article 8.  The subject of gender reassignment was  held breach ...

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