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We commented in Issue 13 of the European Review on the incorporation of the European Convention on Human Rights into English and Scottish law. Now employment law cases are beginning to come before courts in the U.K. which have a Human Rights dimension. We examine the effects below.
Article 6 of the European Convention on Human Rights states 'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law'. This seemingly uncontroversial declaration could have serious consequences for internal and professional disciplinary proceedings. For instance professional disciplinary committees often bring proceedings against an individual as well as setting out what constitutes an infringement of their rules. The same people often sit on both bodies. Both these features could prevent a professional tribunal as being seen as impartial.
A case in Scotland has tested these propositions. Ms. Tehrani was a qualified nurse who had proceedings brought against her by the U.K. Central Council for Nursing, Midwifery and Health Visiting (UKCC). Their Professional Conduct Committee has the power to remove her from the register of nurses. She challenged the proceedings in the courts claiming that the committee was not impartial under the terms of the Convention. The Court ruled that the Convention did apply to the professional disciplinary body as they had the power to diminish Ms. Tehrani's job prospects and so her civil rights would be affected by their decision. They also indicated that the structure of the UKCC's committees might not make it impartial. However because there is a right of appeal from the UKCC to the Scottish courts this possible partiality did not matter.
Article 8 of the Convention lays down that 'Everyone has the right to respect for his private and family life, his home and his correspondence'. In Employment Tribunals medical records of individuals are often called for in personal injury, employment and discrimination cases. Does this practice infringe the right to privacy ? In the case of Wilson v de Keyser, Mrs. Wilson claimed that a letter sent by her employer to a doctor in connection with an Employment Tribunal case included sensitive personal information which breached Article 8. The tribunal threw out the employer's case on the basis that the letter constituted scandalous conduct but the appeal tribunal found that the Convention had not been infringed because the letter had not been sent to a public authority and contained no confidential information. It seems that further cases where actual medical records are involved will be needed before this point is settled.
The European Commission has brought a complaint against Belgium before the European Court of Justice. The problem concerns the establishment of health and safety committees in smaller companies. The Belgian law of 1996 stated that committees must be set up in companies with over 50 employees. However in firms with fewer workers the law stipulated that direct discussions would take place with staff on health and safety matters and these arrangements would be clarified by Royal Decree. No Royal Decree has ever appeared. The trade unions in Belgium want to fill this gap by extending the scope of the committees and lowering the 50 threshold. The employers say that much consultation already takes place without the involvement of the unions.
A case referred to the ECJ from Austria has clarified some of the procedures needed to evaluate whether two employees perform work of equal value. Susanna Brunnhofer complained to the Vienna High Court that she was payed a lower monthly supplement than her male colleague who was classified in the same job category. The Austrian court referred the case to the ECJ to clarify some key points.
It has found that: 1) a monthly salary supplement counts as pay and is therefore covered by the 1975 directive on equal pay; 2) just because two employees are in the same job category it does not follow that they are doing work of equal value; 3) the complainant has to establish that their work is of equal value and that they are receiving lower pay before the employer has to answer; 4) pay may differ even though a collective agreement prescribes the same pay for workers in the same job category as long as it does not discriminate by gender and 5) pay differences at the time of appointment cannot be justified by claiming that one employee works harder than another. The Austrian court will now have to decide the case bearing all these points in mind.
A case from Germany has clarified one aspect of contract of employment law but left other points unclear. Mr.Lange was employed by the Schünemann engineering company as a lathe operator. When he was asked to work overtime to finish a customer contract he refused on the basis that he had not been notified in writing of the obligation to work extra hours when he was taken on. The German court asked the ECJ if the directive on Proof of Employment Relationship, 1991 had been broken. The directive says that employers must set out 'the length of the employee's working day or week'. The European court ruled that this included overtime obligations, however they left a sting in the tail of their judgement by saying that if companies failed to do this, overtime could still be applied. It would then be left to the worker to apply to an Employment Tribunal to determine what their contract terms actually were. This could prove difficult for the large numbers of people that have nothing in writing from their employer.
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