Employment Law and Human Rights – The Debate Continues

The impact of the UK’s human rights obligations on employment law is still a subject of much debate almost 20 years after the advent of the Human Rights Act 1998. In one important case, the Court of Appeal upheld a trade union’s plea that the right to freedom of association may be violated by the exclusion of parks police officers from pre-redundancy consultation rights that are afforded to other workers.

The case arose from a local authority’s decision to disband its parks police service. Two officers who lost their jobs as a result lodged complaints of unfair dismissal with an Employment Tribunal (ET). Their trade union also sought a protective award in respect of the council’s alleged failure to carry out collective consultation prior to the making of more than 20 redundancies, as required by Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Both claims were permitted to proceed to a full hearing by the ET, but that decision was subsequently reversed by the Employment Appeal Tribunal (EAT). In respect of the officers’ claims, the EAT noted that those persons in police service are precluded from bringing unfair dismissal claims by Section 200 of the Employment Rights Act 1996. The union’s claim was excluded by Section 280 of TULRCA.

The Court had no enthusiasm in rejecting the officers’ appeals on the basis that their dismissals did not engage Article 8 of the European Convention on Human Rights – which enshrines the right to privacy – whether read by itself or in conjunction with Article 14, which bans discrimination. In urging the Government to review the law on the point, the Court noted that the exclusion of parks police from unfair dismissal protection was anomalous and an apparent injustice.

In upholding the union’s appeal, however, the Court found that the right to collective consultation conferred by TULRCA fell fairly and squarely within the ambit of Article 11 of the Convention, which guarantees freedom of association and peaceful assembly. The union’s claim for a protective award was thus not excluded and its case was sent back to the ET for full consideration on its merits.