Big brother RIP?

AuthorNickson, Sue
PositionHuman Rights Act (HRA - Brief Article

Employers should tread carefully when monitoring their staff, as they could fall foul of human rights legislation unless they can prove the measures are necessary to protect others.

The media coverage following the enactment of the Human Rights Act (HRA) 1998 on 2 October has sent a chill down the spine of most employers. The HRA, described by some as the most important piece of legislation since the Magna Carta, incorporates into UK law the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

These principles include the right to:

* not be discriminated against on grounds such as sex, race, religion and political opinion;

* a fair trial;

* respect for privacy and family life;

* freedom of thought, conscience and religion;

* freedom of expression; and

* prohibition of torture or inhuman or degrading treatment.

In an employment context, most of these fights will be subject to limitations if an employer can show that the infringements are necessary to protect others.

The HRA itself has a direct effect only on the actions of public bodies, but courts and tribunals will be bound to take the provisions of the act into consideration when making their decisions. For example, in an unfair dismissal claim, it may be argued that an employee's human fights have been infringed if they have been dismissed for not wearing a uniform or for breaching a no-smoking policy. An employer may be able to defend its case by arguing that a certain dress code was necessary to maintain the public image of the company, or that its duty of care to provide a safe working environment justified a prohibition on smoking.

Could employees allege constructive dismissal where their telephone calls or e-mail communications have been monitored? Will a tribunal strike out evidence of wrongdoing in an unfair dismissal claim if the information was obtained by monitoring communications? The risk that this could be a breach of the right to privacy under the HRA is an area of great concern to employers.

The Regulation of Investigatory Powers Act 2000 (RIP) provides the secretary of state with power to issue regulations governing the monitoring of e-mail and telephone use in the workplace. And the...

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