the Convention can only be enforced through UK courts directly against public authorities. These include the civil service, local authorities, NHS bodies and police authorities. Since courts and tribunals are public authorities, they must interpret existing and future legislation, and develop the common law, in conformity with the Convention wherever possible. They must have regard to Strasbourg case law. While the employees of public authorities can sue the employer directly for a breach, employees in the private sector have to take a more roundabout route. For example, an employee claiming unfair dismissal will be able to argue that conduct by the employer which breaches the Convention must by definition be unfair. Also, the government has a duty to protect its citizens by law from invasions of their human rights by a private employer.
Not all rights under the Convention are absolute, and it provides a number of acceptable reasons for restricting the rights of the citizen. For example, the right to freedom of expression in Article 10 includes the right to wear whatever clothes and hair styles the individual chooses, but the employer is entitled to demand outfits which are decent, do not constitute a health and safety risk, and do not damage the employer’s image. The right to freedom of religion and belief in Article 9 may be limited by the employer’s reasonable demands. For example, in Ahmad v. United Kingdom (1981) a Muslim schoolteacher was held not to have the right to take Friday afternoons off to attend the mosque. The employer had offered to set aside a room in the school where he could pray, or alternatively to give him a four day a week contract. In a nominally Christian country those from other faiths must to some extent conform with the prevailing customs. However, employers are expected to do what is reasonably practicable to accommodate them. Legislation has been passed to allow Sikhs not to wear hard hats in most places of work (Deregulation Act 2015). Although the prohibition of beards for reasons of hygiene may be justified when the employee is dealing with food, it would be necessary for an employer to show that suitable protective clothing would not adequately control the risk (Chapter 8).
The Convention approach is to decide whether a particular qualification of a right is proportionate. The test of proportionality also contains within it its own concept of procedural fairness. An infringement of a qualified right is much less likely to be a proportionate response to a legitimate aim if the person affected by the action was not consulted or not given a right to a hearing.
Inherent in the whole of the Convention is a search for the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s rights.
(Soering v. UK (1989))
There is a ‘margin of appreciation’, that is each state is allowed a certain freedom to evaluate its public policy decisions. Not all countries will interpret the Convention in exactly the same way. An example would be the law of obscenity, which restrains the freedom of expression of publishers. Some countries’ laws will be more liberal than others in what they permit.
Convention rights important for OH professionals are Article 5, the right to liberty and security of person, Article 6, the right to a fair trial, Article 8, the right to respect for private and family life, Article 9, freedom of thought, conscience and religion, and Article 10, freedom of expression. There is no freestanding right to complain of discrimination. Article 14 states that the enjoyment of the rights and freedoms set forth in the Convention must be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. For example, my right to freedom of expression should not depend on whether I am black or white, male or female, a member of the Liberal Democrats or the British National Party. My right to a fair trial includes the right to an interpreter if I do not speak English.
Article 8 of the Convention, the right to respect for private and family life, home and correspondence, has given rise to a number of cases both in the Strasbourg and the UK courts. English law up to now, though recognising a duty of confidence, has not developed a general right of privacy. What is the difference? In Kaye v. Robertson (1991) Gorden Kaye, a television actor, was badly injured when a hoarding fell on his car in a storm. A photographer without permission took photographs of him lying in his hospital bed after an operation and sold them to a newspaper. The court held that there was no right to privacy. However, in 2003 Naomi Campbell, a model, was photographed in the street leaving a meeting of Narcotics Anonymous and the picture was published in the Daily Mirror. The House of Lords held that this was a breach of the duty of confidence by the other member of the group who had notified the press that Naomi was attending the meetings, and that the photographs should not have been published. They discussed the conflict between Article 8 and Article 10, the right of freedom of speech, and held that in this case there was no public interest overriding the claimant’s right to have her private life remain private (Campbell v. MGN). Attempts have been made, with limited success, to persuade UK courts that Article 8 could be used to create a general right of privacy. Courts ask whether the claimant had a reasonable expectation of privacy and whether there is a public interest in private information being revealed. In R (on the application of W, X, Y and Z) v. Secretary of State for Health (2015), individuals not ordinarily resident in the UK were billed for NHS treatment which is free to UK residents. NHS Trusts are required by statutory regulations to provide the Secretary of State with data about such individuals who owe debts of at least £1000. The information demanded covers their identity and the name of the NHS body to which the debt is owed but not any medical details. It is passed to the Home Office which administers the immigration rules. Patients were made aware of this system before they received the NHS treatment. It was challenged as an invasion of the patients’ right to privacy. The Court of Appeal held that the patients did not have a reasonable expectation that the information would be held in confidence and, in any event, the public interest in disclosure outweighed the interest in privacy. The sharing of the information was in accordance with the law and Article 8 of the Human Rights Convention was not infringed. Nevertheless, Article 8 has strengthened the right to have confidential information respected, which is very relevant to occupational health (Chapter 3).
The courts have held that matters in the public domain do not fall within the protection of Article 8. In X v. Y (2004) the applicant was employed as a development officer for a charity which promoted personal development among young people. His post involved working with young offenders. He was arrested for engaging in consensual sexual activity with another man in a public toilet and was cautioned for an offence under the Sexual Offences Act. He did not reveal this to his employers, but when they discovered it through police checks they dismissed him for gross misconduct. They emphasised that it was not his homosexuality that was in issue, but his deliberate failure to disclose a criminal offence that was relevant to his job. The charity was not a public authority, so no action could be brought for a breach of the Human Rights Act. Nevertheless, the Court of Appeal held that in determining whether the dismissal was fair the tribunal should take into account the Convention. The applicant argued that the dismissal was a breach of Article 8, since at the time of the offence he was off duty and the incident did not involve any of his clients. The court held, however, that as the crime was committed in a public place it could not be regarded as private. In any event, the applicant was guilty of a criminal offence, which is not a private matter. ‘The applicant wished to keep the matter private. That does not make it part of his private life or deprive it of its public aspect.’ It was held that the dismissal was fair.
A similar case, Pay v. United Kingdom (2009), was taken to the Strasbourg court. A probation officer working predominantly with sex offenders was discovered by his employers through an anonymous tip‐off to be involved in the merchandising of sado‐masochistic products, which he advertised on the Internet. Anonymised photographs of him engaged in sado‐masochistic activities were displayed on websites. Nothing that he had done was in breach of the criminal law. He was dismissed for engaging in activities incompatible with his role and responsibilities as a probation officer
