The incorporation of the European Convention of Human Rights into UK law appears to introduce greatly enhanced rights for employees. This is especially so in reference to challenging an employer's ability to control the workplace by limiting employees' privacy and freedom of expression.

Employment tribunals and public authorities will be obliged, where possible, to interpret UK employment law consistently with the Human Rights Act when determining disputes between private sector employers and employees. Consequently, all employees will benefit indirectly from the Act's provisions.

The rights introduced by the Act, which are most likely to impact upon employment law, are: respect of private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of assembly and association; prohibition of discrimination and a fair trial.

Except for the last, these rights are not absolute and can be subject to legitimate interference, provided such interference is lawful (ie not specifically proscribed by law). It is also necessary for specified purposes such as the prevention of crime or the protection of the rights or freedoms of others. Consequently, while monitoring email may breach employees' right to respect of their private life, it could be justified, if necessary, to stop email harassment.

Impact assessment

Prudent employers should ensure that any practices or policies, such as prohibiting relationships at work, which could interfere with an individual's rights, are set out clearly in their employees' contracts of employment. The European Court of Human Rights has been willing in the past to uphold an employer's interference with individuals' rights if it is spelt out clearly in the contract of employment and has a legitimate purpose.

The introduction of the Act will impact upon an employer's discretion to control the workplace environment: by recording telephone calls; using CCTV to monitor employees; monitoring of emails; drug testing; psychometric testing and collecting medical information on employees.

Dress codes are likely to be challenged for unlawfully restricting employees' right to freedom of expression. This right is subject to interference “for the protection of the reputation or the rights of others”, which could entitle an employer to determine what dress is acceptable for its corporate image. However, now any employers enforcing dress codes will have to show that they are “necessary” rather than merely reasonable. Consequently, previous cases allowing dress codes that could not be objectively justified, such as the ban on long hair for men but not women, are likely to be overturned.

The potential impact of the Act on employers includes:

  • conferring new, directly enforceable rights for public authority employees against their employers, although for the time being those rights may not be enforceable through employment tribunals
  • obliging employment tribunals, where possible, to interpret existing UK employment law compatibly with the convention rights. While this will not engender the creation of new types of complaint, such as discrimination on religious grounds, it will force a reappraisal of employers' rights to control the workplace environment
  • stimulating a reappraisal of the implied duty of “trust and confidence”, which underpins all employment relationships. It is likely that any actions by an employer in breach of Convention rights (such as covertly recording telephone calls) may now constitute a breach of that duty entitling the employee to resign and claim (unfair) constructive dismissal.