The Protection of Civil Liberties in the Workplace
| Date | 01 July 2006 |
| Author | Hugh Collins |
| Published date | 01 July 2006 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00602.x |
CASES
The Protection of Civil Liberties in theWorkplace
Hugh Collins
n
HowgreatanimpacthastheHumanRightsAct1998(HRA1998)hadon
employment law? Has it proved the damp squib that some predicted?
1
Have the
courts in the United Kingdom continued to marginalise those rightswhen asses-
sing employment law issues?
2
Or has the HRA1998 given further impetus to the
movementtowards a recon¢guration of employment lawaround the idea of indi-
vidual rights.
3
After littlemore than ¢ve years of the HRA1998being in force, it
is too early to answer these questions with con¢dence, but we can obtain a sense
of the direction in which the wind is blowing from recent decisions of the Court
of Appeal, particularly that in Copsey vWBB Devon Clays Ltd.
4
For the HRA1998 to have a strong impact on employment law, three crucial
legal developments are necessary. First,the courts need to accept that Convention
rights have indirect horizontal e¡ect in employment law. Second,the courts must
interpret those rights i n away that adjusts their meaning to ¢t the context of dis-
putes betweenemployers and employees. A¢ nal essential development is that, i n
the assessment of justi¢cations for restrictions on the enjoyment of Convention
rights by employees in the workplace, the courts need to recognise that an
employer’s legitimate business interests should not necessarily prove su⁄cient to
curtail a worker’s enjoyment of rights. In relation to these three crucial develop-
ments, Copsey con¢rms that the HRA 1998 has indirect horizontal e¡ect, takes
some tentative steps in the direction of a more contextual interpretation of Con-
vention rights in a ne mployme ntco ntext, but provides only little encouragement
with respect to the third essential development of establishing a test of justi¢ca-
tion that requires more than the presentation of a legitimate business purpose.
These three hurdles for the HRA 1998 to have a signi¢cant impact in employ-
ment law will be considered in turn.
INDIRECT HORIZONTAL EFFECT
The proposition that the Co nventio n rights should have indirect horizontal e¡ect
in employment law had already been a⁄rmed a year before Copsey by the Cou rt
n
London School of Economics.
1 K.D. Ewing,‘The Human RightsAct and Labour Law’(1998) 27ILJ 275.
2EgAhmad vILEA [1977] ICR 490, CA.
3 K.D. Ewing, ‘Rights at the Workplace: An Agenda for Labour Law’, in A. McColgan (ed),The
Futureof Labour Law (London: Cassel,1996);K. D. Ewing,‘Democratic Socialism and Labour Law’
(1995) 24 ILJ 103. H. Collins,‘The ProductiveDi sintegrationof Labour Law’ (1997) 26 ILJ 295.
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(200 6) 69(4) MLR 619^6 43
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