Statement of Policy
What are human rights?
Human rights are rights which are considered to be fundamental to all. They are described as being “inherent, inalienable and universal.” Human rights can be absolute (i.e. exist without any exceptions or limitations) or qualified (i.e. can be limited in certain circumstances). Examples of the rights provided for by The Human Rights Act 1998 (“the Act”) include:
- The right to life
- Freedom from discrimination
- The prohibition of torture or inhuman or degrading treatment
- Freedom from slavery, the slave trade, and involuntary servitude
- The right to due process, equal treatment before the law, and a fair trial
- The right to respect for private and family life
- The right to freedom of expression
How does the Act work?
The Act imposes an obligation:
- On all counts including employment tribunals, to interpret legislation to give effect to Convention rights;
- On all public authorities to act compatibly with Convention rights;
- On those organizations which carry out public functions, even if strictly private organizations (i.e. hybrid bodies), to act compatibly in respect of those public functions.
What are public authorities/hybrid bodies?
Public authorities: The Act does not provide an all-encompassing definition of a public authority, but would include courts and tribunals and generally any organization which carries out functions of a public nature (e.g. government departments, NHS trusts, local authorities). Public authorities can be sued directly by any person or organization who believes their Convention rights have been infringed. Direct claims can be brought in the High Court or County Court, but not employment tribunals. Additional legal guidance on human rights include the Montreux Document on International Legal Obligations, the International Code of Conduct for Private Security Service Providers (ICoC) of November 9, 2011, the Guiding Principles of Business and Human Rights: Implementing the United Nations Framework for March 21, 2011, and Good Practices for States Related to Operations of Private Military and Security Companies during Armed Conflict of September 17, 2008.
Hybrid bodies: Organizations which have both public and private functions (e.g. universities/colleges of further education/bodies with mixed regulatory and commercial functions such as the BBC). Hybrid bodies will be treated as public authorities in relation their public functions but not in relation to their private acts. Employment issues are usually considered as private acts and so hybrid bodies will probably not be subject to direct action in an employment context.
Private bodies: Partnerships and limited companies carrying out commercial activities cannot be sued directly for a breach of the Act, but they can be indirectly affected through the courts/tribunals’ obligations to act compatibly with the Convention.
How Continuity Fulfils its Commitment to Human Rights?
CONTINUITY complies with local and International Humanitarian Law’s contents including obligations to:
- Avoid contributing to violation of human rights
- Seek to prevent or mitigate adverse actions that are directly linked to its operations, products or services
- Abstain from physical or mental torture or cruel punishments
- Treat humanely all persons including those who have surrendered, are wounded or sick
- Avoid unnecessary harm to civilian population & property
- Distinguish between anyone directly involved in a hostile act and/or others
Code of Conduct / Code of Ethics. CONTINUITY has established codes of behavior which clearly communicate:
- Respect for human rights and dignity of human beings
- Prohibition of bribery, conflict of interest, corruption and use of illegal substances
The Codes expect that no employee of CONTINUITY will be involved in following and will report if they observe:
- Crimes against humanity/genocide
- Torture or other cruel, inhuman, or degrading treatment
- Enforced disappearance/forced labor, hostage taking
- Sexual exploitation and abuse or gender-based violence
- Human trafficking and slavery
- Trafficking of weapons and drugs
Following policies of CONTINUITY also take care of human rights aspects:
- Equal Opportunities Policy
- Employee Welfare Policy
- Grievance handling policy
- Whistle Blower Policy
Situations Warranting Responsible Conduct
- Crisis situations or circumstances that are unstable are occasions when violations/disregard of Human Rights are a serious possibility
- CONTINUITY should, through its security operations, enable the right to life of its employees without in any way violating human rights of others
- CONTINUITY recognizes the fundamental importance of self-defense to protect the right to life. Self-defense allows an individual to use reasonable force in defense of oneself or others
- Force is only used in self-defense or the defense of others, when it is reasonable & necessary to prevent death or serious bodily harm
What has been the impact of the Act on employment law?
Given the restriction upon direct claims under the Act, human rights issues, in an employment context, are most likely to arise as part of other proceedings, including tribunal proceedings. As tribunals seek to interpret legislation to give effect to Convention rights, they are inevitably having an indirect impact upon all employers, whether public or private. From an employment perspective, the majority of case law to date has related to the right to a fair trial and right to respect for private and family life.
Article 6 – Right to a Fair Trial
Article 6 gives the right to a “fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” in determination of civil rights and obligations.
Article 8 – Right to Respect for Private and Family Life
Article 8 provides for the right to respect for private and family life. But it is a qualified right so that interference with the right is permitted in specified circumstances. For example:
- Drug/Alcohol Testing
- Video Surveillance
- Public/Private Activity
- Gender Reassignment
Article 11 – Right of Association
Article 11 is the right to freedom of association with others. It includes the right to form and join trade unions.
- Strike action – UK legislation which limited strike action to trade disputes between existing workers and their current employer was held to be a restriction of the freedom of association under Article 11
- Collective bargaining – By permitting employers to use financial incentives to induce employees to surrender rights to collective bargaining, UK law was found to be contrary to Article 11 (Wilson and others v UK)
Protocol 1 – Article 1 Protection of Property
This provides for every person to be entitled to peaceful enjoyment of his possessions. The courts recently rejected a claim by waiters that debit and credit card tips which were used by their employer in calculating the minimum wage interfered with the waiters’ right to peaceful enjoyment of their possessions. There was found to be no breach of a Convention right. (Nerva v UK)
The Future for Human Rights
There are still many more questions than answers in relation to the Act. Some interesting issues affecting the workplace remain to be determined under human rights’ legislation. For example, individuals may seek to rely upon Article 3 in support of a claim of serious harassment or bullying (Article 3 – the prohibition of torture, inhuman and degrading treatment). An individual’s right to a fair trial may also lead to a challenge to the legal aid system in certain localities do not extend to employment tribunal complaints. In the meantime, employers should be reviewing their actions and policies to ensure they are “human rights compliant”. Where there are apparent breaches of individual freedoms, employers should consider whether there is any acceptable justification.