Читать книгу Occupational Health Law - Diana Kloss - Страница 20

The Council of Europe was established at the end of World War II, before the European Union. It now has 47 Member States. Though several nations are members of both, the two bodies are quite separate. The European Convention on Human Rights and Fundamental Freedoms is a treaty of the Council of Europe, to which the UK is a signatory, in fact one of the founding members. It creates the European Court of Human Rights. The European Court in Luxembourg (the Court of Justice of the European Union) must not be confused with the European Court of Human Rights in Strasbourg, France. Decisions of the Strasbourg Court are not directly enforceable in the UK, though they carry considerable moral and political influence.

Although the UK was a prime mover in the creation of the Human Rights Convention, the impetus for which was the horror of what had been done to the Jews in Germany under the Third Reich, the British government for a number of years was of the view that it was unnecessary to give UK citizens the right to petition the Strasbourg court, since everyone knew that the UK was above reproach. In 1966 it was accepted that this was not necessarily the case and that British citizens should be given the right to appeal to the Human Rights Court where they were dissatisfied with the lack of a remedy from the domestic courts, and for 20 years this was the ultimate source of complaint for those who were dissatisfied with British justice. Because there was no internal procedure to challenge a decision as contrary to the Human Rights Convention, a disproportionate number of claims was made to the Human Rights Court by British citizens.

The Labour government elected in 1997 declared that the UK would incorporate the Convention on Human Rights into UK law and this was done by means of the Human Rights Act 1998, which came into force fully in 2000. The Act preserves the sovereignty of the Westminster and Scottish Parliaments. In the last resort, an Act of Parliament can lawfully deprive British citizens of their rights under the Convention. However, Parliament, and the courts in interpreting legislation, are obliged as far as possible to comply with the Convention. Thus, a decision of the UK Parliament to pass legislation which conflicts with the Convention would be a deliberate decision that the interests of this country override the Human Rights Convention. In such an unlikely case the Strasbourg court and the other members of the Council of Europe might make representations, and there is the possibility that the UK might even be expelled from membership of the Council of Europe. The higher courts are given power by the Act to make a declaration of incompatibility between legislation and the Convention. This happens only rarely, but when it does there is obviously pressure on the legislature to change the law. One example is the ruling by the House of Lords that persons suspected of terrorist offences may not be imprisoned indefinitely without trial A(FC) v. Secretary of State for the Home Department (2004). In 2009 the House of Lords made a declaration that the procedure of provisional listing by the Secretary of State for Health under the Care Standards Act 2000 of care workers considered unsuitable to work with vulnerable adults was contrary to Article 6 of the European Convention. Mrs Wright is a registered nurse. She was dismissed for gross misconduct in November 2003 from her job in a care home. She was provisionally placed on the ‘unsuitable’ list in February 2005, but eventually, many months later, her name was removed from the list after an appeal to the Care Standards Tribunal. During this period she could not be lawfully employed in a care home. Article 6 provides that in the determination of their civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The House of Lords decided that the power of the Secretary of State to place a name on the provisional list without the individual being able to make representations as to her innocence was contrary to Article 6. Although in due course an appeal could be heard by the Care Standards Tribunal, in the interim the nurse was in limbo and permanent damage might be done to her reputation and career. She should be entitled to a hearing before her name could be placed on the list, other than in a case where there was an urgent need to prevent harm to patients (R (on the application of Wright) v. Secretary of State for Health (2009)). The listing of those deemed unsuitable to work with vulnerable adults was transferred to procedures created by the Safeguarding Vulnerable Groups Act 2006, but the principles laid down by the House of Lords in the Wright case are of general application.

The rights under 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 and brought proceedings for unfair dismissal, which were unsuccessful in the English courts. On appeal, the Court of Human Rights held that the interference with Pay’s right to privacy pursued a legitimate aim, namely the protection of the employer’s reputation, and was proportionate. He owed to his employer a duty of loyalty, reserve and discretion. His sexual proclivities were his own affair, but he had made them public. However, the Strasbourg court decided that the right to privacy was not necessarily confined to private premises, and could extend to, for example, meetings open to the public but likely to be attended only by a small group of like‐minded persons, for example a meeting of Alcoholics Anonymous. They also held that the criminal nature of an activity did not automatically remove it from the protection of Article 8, where it was unconnected with employment (an example might be the recreational use of illegal drugs in the employee’s off‐duty time).

Alison Halford was Assistant Chief Constable of Merseyside Police. She failed to achieve further promotion in Merseyside and elsewhere, because, she said, of her gender. Eventually she made a complaint to a tribunal, backed by the Equal Opportunities Commission. She claimed that her telephone calls from her office to her solicitor were intercepted. It was not unlawful in UK domestic law at the time for the employer to listen to his employee’s calls on the office telephone. Ms Halford therefore complained to the Strasbourg Court under Article 8 and her complaint was upheld (Halford v. UK (1997)). She had a reasonable expectation that her calls would not be overheard, since the Chief Constable had assured her that she could make private calls on that phone. Legislation is now in place to permit employers to monitor telecommunications at work, but only when employees have been warned that monitoring is in place. The Regulation of Investigatory Powers Act 2000 permits interception of a communication over a telecommunication system if this is a legitimate business practice. The Telecommunications (Lawful Business Practice) Regulations 2000 authorise businesses to monitor or record communications for good business reasons, e.g. for the purpose of quality control, to prevent or detect crime, to investigate or detect unauthorised use of the telephone, emails, or the Internet. The employer must make all reasonable efforts to inform every person who may use the system that interception may take place. In the case of occupational health communications, it is important that agreement is reached with the employer that these will not be monitored. The Information Commissioner in Part 4 of the Data Protection Code of Practice emphasised this point (Chapter 3).

Evidence given in legal proceedings may be challenged as obtained through an invasion of privacy under the Human Rights Act. Jean Jones was employed by the University of Warwick. She dropped a full cash box with a broken lid on to her right wrist, causing a small cut. She said that she had developed a focal dystonia, and claimed damages in excess of £135,000. The defendant’s insurers were suspicious of this claim and hired an enquiry agent who obtained access to the claimant’s home by posing as a market researcher. He had a hidden camera. The defendant’s expert, having seen the films taken in her home, was of the opinion that the claimant had an entirely satisfactory function in her right hand. It was not in dispute that the enquiry agent was guilty of trespass. The issue was whether the illegally obtained films should be admitted in evidence. The claimant argued that they should not be, because they were obtained in breach of Article 8 by invading her home; the defendant argued that they should be, because they were a true record, not manufactured, and without them the defendant would be denied a fair trial under Article 6. The court agreed to admit the evidence as probative, but ordered the defendant to pay the costs of the litigation to establish the admissibility of the evidence (Jones v. University of Warwick (2003)).

In McGowan v. Scottish Water (2005) the employer suspected that McGowan, who lived in a tied cottage close to his workplace, was falsifying his timesheets with regard to call‐out time. They hired private investigators to undertake covert video surveillance of his home from the public road; their suspicions were confirmed and he was dismissed. It was held that this was a justifiable interference with privacy because the employer had a reasonable suspicion that the employee was defrauding public funds and was entitled to investigate.

C v. The Police and the Home Secretary (2007) concerned a sergeant of police who retired on medical grounds in 2001. He claimed that in 1998 he had suffered a back injury as a result of tripping on a carpet in a police station while on duty. His claim was settled out of court for £100,000. He then claimed an injury on duty award to increase his pension. The police force was suspicious and hired a firm of private enquiry agents to film him mowing his front lawn, and also driving his car. No authorisation for these activities was obtained from a senior police officer under the Regulation of Investigatory Powers Act 2000 (RIPA). The Investigatory Powers Tribunal held that such an act of employment‐related directed surveillance did not need to comply with RIPA procedures. The police were not investigating a crime; rather, they were collecting evidence for the purpose of a pension appeal. However, they decided that the Tribunal had no power to adjudicate on whether there was a breach of Article 8 of the European Convention on Human Rights, which was a matter for the ordinary courts.