Human Rights: possibilities and problems for labour law, Liverpool

Talks from lawyers and academics on justice for workers and replacing the Human Rights Act in favour of the UK Bill of rights.

21st October 2015

About the Conference

Carolyn Jones, Director of IER welcomed delegates to the conference, noting the ongoing narrative in the press about repealing the Human Rights Act and replacing it with a UK Bill of Rights and the continuing discussion on the threat to withdraw the UK from the European Convention of Human Rights. She noted that neither are likely to happen, quoting Dominic Grieve, QC as saying “being irritated by the Human Rights Act is not a good reason to repeal it”. She went on to compare the bizarre stories in the press about prisoners, migrants and interfering Judges with the reality, noting that the HRA and the European Convention offer some protection – albeit weak – to UK citizens and workers.

The first speaker of the morning, Michelle Farrell from the Liverpool University Law School began her presentation by saying she was more concerned with the politics of the debate rather than the law itself. She discussed the government’s proposals together with the claimed results and queried the reality of Tory claims, noting that a Bill of Rights would do nothing to develop a culture of freedom in the UK. She went on to consider the stated rationale behind the proposals, noting they were ideologically driven rather than evidence based, querying for instance, whether controlling “mission creep” was even possible given the inevitable level of judicial interpretation allowed in our legal system. She said attempts to repeal the HRA and replace it with a Bill of Rights was an attempt to make the legislation specifically conservative , incorporating ideologically driven aims to curtail trade unions, restrict immigration and remove opposition to policies of austerity. She went on to consider the reality of the supervisory functions of the European Court – referring to it as an inefficient roundabout that delivers little in the UK. However, she noted that while enforcement of human rights is weak, we can use the political arguments provided by the human rights narrative to good purpose. Finally she considered some of the positive labour law cases developing in the European Court of Human Rights and noted how recent decisions had widened the scope of human rights protections to include freedom of association issues, including the right to collective bargaining and the associated right to strike.

The next speaker, Peter Daly from Bindmans Solicitors looked at surveillance and monitoring at work and the extent to which international human rights standards might protect workers from some of the worst abuses. He began however by pointing out that increasingly we collate, parcel up and “deliver with a bow” a vast amount of personal information about ourselves on a voluntary basis without even asking how and why that information will be used. As examples he highlighted the small print in social media and electronic platforms such as Facebook and Google as well as updati8ng delegates on some of the advances in smart phone and TCV technology including facial recognition, cameras in TV sets. Peter noted that not all surveillance and monitoring is bad. Surveillance used for personal security, quality control, protection of property etc can be good as can monitoring for race equality etc. But technological developments are increasingly adding to the power of employers with chairs monitoring time spent at desks and other gadgets tracking staff continually as they go about their work. Peter concluded by taking delegates through the existing framework of laws, providing examples of judicial cases, to assess whether workers are sufficiently protected against excessive surveillance and monitoring. He concluded by saying that legal avenues are so weak as to be meaningless and that our willingness to give up information about ourselves together with the fact that technology is racing so far ahead of legislation that in reality, employers can monitor as much as they like!

The next speaker, Dominique Lauterburg from Manchester Law School, covered the issue of whistleblowing and the protection offered by Article 10 of the ECHR on freedom of expression, the Employment Rights Act and Public Interest Disclosure Act. She began by noting the variety of legislation and level of coverage offered by each before going on to consider the protections in more detail. She covered a range of issues including who is covered by the legislation, the meaning of a “protected disclosure”, who you can disclose to and what a disclosure consists of. She discussed for instance the difference between a ‘disclosure’ and ‘communicating an issue, expressing a concern or making an allegation’. Dominique then went on to outline problems of defining what is ‘reasonable’ or ‘in the public interest’ suggesting areas of wriggle room for bringing employees under the protection of the Act! Dominique then went on to explain the background to why the ERRA amended the ERA to insert the public interest requirement, referring specifically to the Parkins v Sodexho case and the issue of whether breach of contract was a qualifying disclosure. She noted that despite amendments to the legislation, the Court of Appeal had in recent cases interpreted breach of contract cases as being protected. The issue is currently under appeal. Dominique concluded with reference to two ECtHR cases and ended with the positive news that according to the Court, gagging clauses in contracts would be void if covering a protected disclosure.

The last speaker before lunch was Neil Todd from Thompsons Solicitors In his presentation, Neil considered how trade unions can best resist the Trade Union Bill, looking specifically at the protections offered by Article 11 of the European Convention on Human Rights. He began by reporting on the evidence given by Thompsons to the UK Public Committee, saying the Bill was ‘unlawful, unworkable and unnecessary’ and noted that similar comments had been raised by others, not least Vince Cable who called the legislation ‘vindictive’. He noted that the framework of UK labour law is already a minefield, placing onerous hurdles on legitimate industrial action. Neil went on to consider in some detail both the current and proposed positions regarding strikes, picketing, agency workers, political funds, facility time, check off arrangements and the powers of the Certification Officer. Throughout his presentation Neil offered important observations on aspects of the proposals. He said the restrictions on the right to strike violated Article 11 of the Convention, which imposes a duty on the State to protect and promote collective bargaining and reminded delegates of John Hendy’s quote that collective bargaining without the right to strike was little more than collective begging. He highlighted the hypocritical stance of the government in refusing to consider electronic and workplace ballots and reminded delegates that draft legislation on this issue was available, as produced but not enacted by a previous Labour Government. Neil noted that the new ballot thresholds were likely to attract the attention of the ILO Committee of Experts who had already criticised other States including Australia. He also suggested that proposals to use agency workers to break strikes would breach Art 11 as would aspects of the proposals on check-off and restrictions to facility time. He also warned that extending the concept of ‘essential services’ to ‘important services’ would attract criticism from the ILO. For more information on the TU Bill be sure to check out Neill’s presentation below and the IER’s Protect the Right to Strike hub page.

The first speaker of the afternoon session was Nicole Busby, Deputy Head of the Law school at the University of Strathclyde. Cad pointed out that Nicole was the co-author of an IER publication on Access to Justice, the topic under discussion in this session. Nicole began by outlining the research her and her colleagues had undertaken, tracking cases and ET claims pursued via the Citizens Advice Bureaux. She noted that the backdrop for the research was concern about how workplace disputes were getting resolved given the cut back in enforcement avenues open to workers including cuts to legal aid, decline in the number of workplaces covered by a trade union, the cost of lawyers and cuts to CAB itself. Access was made worst when, during their research, a new system of Tribunal fees was introduced – meaning the data collected by the research group included both pre and post fee information. After considering in some detail the experience of a worker in one particular case, Nicole then considered whether Article 6 offers practical assistance in its aim to cover access to Court, a fair hearing and legal assistance. She noted that the Equality and Human Rights Commission in its 2012 review had feared that ‘cuts to legal aid could compromise the right to a fair trial by limiting people’s access to legal advice and representation’. She then went on to review the impact the introduction of fees was having on ET claims, noting an 81% drop in cases in the first year, with equal pay, sex discrimination and pregnancy claims worst hit. Nicole welcomed and praised the stance taken by UBISON in challenging the introduction of the fees system and made reference to the MoJ’s post-implementation review, which could be summarised as too little, too late! Nicole touched on the system of ACAS arbitration and said she doubted it could fill the gap left open by cuts and fees. Against the difficulties of pursuing and winning a claim, Nicole referred to the high number of cases where no compensation or payment is made even in successful cases due to the abuse of insolvency arrangements and phoenix companies. Nicole concluded with policy suggestions for the future including the removal of the fees system, better provision of free representation and alternative enforcement mechanisms. She said the government should play a proactive role in enforcement, extending the role of HMRC to pursuing companies for ET awards.

The final speaker of the day was Dan Blackburn, Director of the International Centre for Trade Union Rights. Delegates had heard many contributions on the role international standards and human rights can play in delivering fairness at work. Dan opened his contribution by reminding delegates of the international complaints mechanisms available for trade unions and their members to use to highlight bad practices of both employers and the government. In terms of the State, the two processes Dan particularly considered where the Special Procedures of the UN Human Rights Council and the Universal Periodic Review. But Dan also touched on the OECD procedure for regulating the conduct of multinational corporations and provided detailed guidance on how to pursue a complaint. He noted the relevant contact point is based in BIS and a complaint could be raised by a simple letter. He said it is free and there is no need for legal advice to pursue a complaint – although he did advise delegates to involve their union and the TUC in any proposed complaints procedures. Dan noted that the next periodic review of the UK was due in 2017, with findings closed in 2016 so now is a good time to consider raising a complaint – perhaps on the Trade Union Bill – for consideration. Again he said the complaint need only be short. Dan noted the problem of parallel procedures and warned against using the Committee of Freedom of Association (CFA) complaints system.

Following a number of questions from the floor the conference closed at 3.15



Michelle Farrell. University of Liverpool.
Human rights: A post-election analysis

Shah Qureshi & Peter Daly. Bindmans Solicitors LLP
Surveillance and monitoring at work: How much is too much?

Dominique Lauterburg. Senior Lecturer, Manchester Law School.
Whistleblowing, freedom of expression and Article 10 of the European Convention on Human Rights

Neil Todd. Thompsons Solicitors.
Article 11 and the TU Bill: Resisting Attacks on TU Freedoms

Nicole Busby. Deputy Head of the Law School University of Strathclyde.
Access to justice: Article 6 and the right to a fair hearing.

Daniel Blackburn. ICTUR.
How to raise complaints to international bodies.1, 2, 3.