A new act on the statute book has important implications for all FE institutions. John Hall provides some answers.
Why are you bringing human rights to our attention this month?
Because the Human Rights Act 1998, becomes law on October 2. It is of great symbolic and constitutional importance: for the first time, the rights enshrined in the European Convention for the Protection of Human Rights will be directly enforceable in British courts. People here have always been able to bring claims to the European Court of Human Rights in Strasbourg, but this is very costly and time consuming. Once the Act becomes law, it means that claims for breaches of the convention can be brought more quickly and cheaply.However, it may be some time before the Act's full impact is felt.
What rights are we talking about?
The sort of rights that will affect people in colleges include:
* the right to respect for private and family life.
* the right to freedom of thought, conscience and religion
* the right to freedom of expression
* the right to education.
How will it affect colleges?
The Act requires "public authorities" to act in compliance with the European convention. Most publicly funded schools, colleges and other further and higher education institutions will probably fall within the definition of a public authority, being "any person certain of whose functions are functions of a public nature". However, the Act goes on to say, rather confusingly, that "such a person is not a public body if the nature of the action by the body concerned is private".
It will have a considerable impact on public authorities because of its direct effect: if an organisation is clearly a public authority (as will be the case with most FE colleges), then even private acts are governed by the Act. Accordingly, colleges can be sued directly for any breach of the convention. There is likely to be much litigation to establish whether an organisation is in fact a public authority, and it is likely that the courts will interpret the definition broadly.
Who can bring claims?
The claimant must be a "victim" of an act (or failure to act) by a public authority, but it is important to note that "victim" does not simply mean an individual such as a student or member of staff; it can mean a non-governmental organisation, a group of individuals, a trade union that has authority to represent its members' interests, or even a company, for example, in a joint venture with a college.
Who can be subject to claims?
Generally, two types of organisations:
* Public authorities, as defined by the Act. These are obliged to act
compatibly with the Act in respect of all their activities ranging from the public functions carried out to their employment practices * Hybrid bodies that carry out a mixture of public and private functions. These include commercial organisations such as private providers of education services. Their publicly funded services are public functions, which must be carried out within the Act, whereas their other activities fall outside its direct provisions.
Does this mean individuals and commercial organisations areunaffected?
Not necessarily. Although direct claims cannot be brought against individuals and commercial organisations, they may be affected indirectly . For example, a private-sector provider might rely on CCTV evidence to dismiss an employee for gross misconduct. The employee could go to the Employment Tribunal. The tribunal may decide that the use of CCTV constitutes a breach of the right to privacy and may disregard the evidence. Thus the Act has had an indirect effect on the emplyer.
Can employees bring claims directly against their employers?
This depends on the type of employer.
Public authority employers will have to respect convention rights in all their activities, hybrid public authority employers only when carrying out public functions. On the face of it, the contract of employment and the employment relationship form part of the "private" functions of an organisation, in which case the Act does not apply. However, if the courts consider there is any public law or public interest at issue, then it does.
What are the employment law implications?
Nobody can say with certainty because only when the Act is in force and cases are decided will the practical implications be known. However, certain convention rights are likely to have greater significance than others.
Article 3 - the right not to suffer degrading, or inhuman treatment - could be breached in instances of serious sex and race discrimination where humiliation and mental distress is caused to the individual.
Article 8 - the right to respect for private and family life, home and correspondence - is most likely to apply to employment law issues because "private life" could include sexual orientation, choice of clothes and medical information. Issues that might constitute a breach of it include:
* CCTV surveillance
* Monitoring e-mail communication
* Recording employees' telephone calls
* Medical checks or compulsory or random drug testing.
All these could infringe an individual's right to privacy and the right to respect for correspondence. However, both these rights can be overridden. Monitoring e-mails could be justified because the purpose of the monitoring is to ensure that offensive or abusive e-mails are not sent, thereby protecting the "rights and freedoms of others".
Article 9 - freedom of religion. At present there is no provision in UK legislation to prevent discrimination on grounds of religion. Breaches could arise where employees are not able to practise their religion - for instance, Muslims and Jews not being given time off on Fridays.
Article 10 - freedom of expression. The Public Interest Disclosure Act 1998 may be subject to the challenge of compatibility because there is only a limited number of disclosures thatprovide the "whistle-blower" with protection, and these disclosures must be to designated persons. The right to freedom of expression may be compromised. Confidentiality clauses in contracts may also be a breach of the convention, although the courts and tribunals will probably take into account the purpose of the clause and the employee's motive for breaching it. Colleges need also to consider whether existing "whistle-blowing" policies and procedures should be extended to cover students and contractors.
How are proceedings brought?
Proceedings must generally be brought within one year, although the courts have the discretion to extend this period. In theory, claims can still be brought in Strasbourg, but all "domestic" remedies must be exhausted first. It is important to note that rights enshrined in the convention can be relied on indirectly in other proceedings - for example, in tribunals.
What steps should colleges take?
Human rights and student policies anddisciplinary procedures should be reviewed to ascertain whether they are "human rights compliant". College managers should consider carefully the purpose of e-mail monitoring, CCTVsurveillance and the recording of telephone calls. Do these actions breach Article 8 and, if so, can they be justified?
John T Hall is head of education law at Eversheds, solicitors, London EC4