Wednesday 1 July 2015

A one-day conference

GMB, 22 Stephenson Way,
Euston, London

The Institute of Employment Rights in association with Morrish Solicitors LLP

Write up:

1 July 2015

By Roger Jeary, IER Blogger

On the hottest day in London this year, the Institute welcomed delegates to the GMB London Office to hear from leading legal and academic experts on the impact of government promises to repeal the Human Rights Act and replace it with a British Bill of Rights. The conference programme also looked at the wider impact of human rights on the world of work and what it might mean for labour law in the UK.

About the Conference

Nerys Owen, from the Labour Research Department, opened the conference by telling delegates that timing was most appropriate given the government’s intention to proceed with the Trade Union Bill with an unhealthy degree of urgency. She noted that at a recent meeting with BIS, it was reported that the Bill would be introduced before the end of this Parliamentary session and that consultation would cover only certain sections of the Bill. Mentioning the proposal to scrap the Human Rights Act, Nerys questioned exactly what was likely to be proposed or indeed whether it would be possible to proceed at all.

The first speaker was Institute President, Professor Keith Ewing, who presented an overview of human rights at work post the election. Referring to the threat of repeal of the Human Rights Act, Keith believed that this would have been dropped had the election result been different, i.e. another coalition. He believed that the possibility of getting parliamentary approval was very limited and would only succeed if something very similar was proposed. On the European Convention of Human Rights (ECHR) this was, in Keith’s view, more important. His sense on this was that a majority of the Tory front bench would not be in favour of removing the UK from this Convention. In any case, Keith felt that a conservative constraint had already taken hold of the ECHR process and he went on to highlight three examples.

First, changes in the composition of the courts had had an impact on decisions. Second, admissibility rules had been tightened making it more difficult to pursue cases to Strasbourg. By example, Keith quoted cases by POA on right to strike and from Unite on protection for workers participating in action short of strike, and noted both had been declined recently. Finally, he noted that Strasbourg was allowing member states more interpretation of the margins of appreciation and quoted the RMT case. He reminded delegates that the right to strike given by Article 11 is limited by the restrictions placed on this right by Section 2 which allows nation states to restrict where “necessary in a democratic society in the interests of national security or public safety, for the  prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of  others”.

Turning to the proposed Trade Union Bill he identified the key issues for trade unions in the context of human rights. One of the issues is trade union organisation where the attack is aimed at limiting the check-off system. Secondly Keith referred to the attack on political rights by insisting that the system of the union political levy would have to rely on members contracting in. This he believed would have a significant impact on the monies raised dropping he believes by more than a third and was a proposal to be used as a stalking horse to allow individuals to determine to which political party their contribution should go. The third major initiative was the limitations on the right to strike through balloting thresholds which Keith asserted were a clear violation of ILO Convention 87. However the question he posed was, in the event of changes in the methods of voting, such as voting electronically, whether this might influence support for higher thresholds.

Following Prof Ewing were Shah Qureshi and Peter Daly from Bindmans Solicitors who addressed the issue of surveillance and monitoring at work. Starting by given their definition of surveillance, which no longer requires someone to “watch”, illustrates the change in approach. In the context of the workplace the ILO set out nine monitoring purposes which were reactive forms of monitoring whereas the move had now shifted to non-reactive monitoring. In effect they explained that this was monitoring for the purpose of collating data without first quantifying why you need that data. Facial recognition in name badges, the movement of chairs and movement tracking are all forms in use of non-reactive monitoring.

Shah Qureshi told delegates that Article 8 of the European Convention of Human Rights applies in the workplace and referred to cases Halford v UK [1997] 24 ECHR 32 and Copland v UK [2007] ECHR 253. He went on to refer to Article 10 which also has some relevance where a worker’s right to freedom of expression could be infringed. Rubins v Latvia [2015] ECHR 2 and Pay v UK [2008] ECHR 1007 were cases where Article 10 was deemed to have been infringed.

Peter Daly then dealt with the Data Protection Act 1998. This he explained was overseen by the Information Commissioner. Within the code determined by the Information Commissioner was a requirement to justify any adverse impact of monitoring on individuals but this was limited as it was only a guide. He referred to employee rights within the Code which includes access requests which enables the employee to ask what information/data the employer holds about you. This is of limited use and enforcement is both time consuming and difficult.

Turning to the Regulation of Investigatory Powers Act 2000, Shah described the effect of the Act preventing unlawful activity relating to interception of phone and email communication. Employers use internet policies and email policies to get round the Act by effectively obtaining consent through these policies. The Telecommunications Regulations 2000 also give huge scope to monitor communications including their own staff. A case of Chand v Commissioner of Police for the Metropolis Telecommunication Regulations [2006] is the only case used in workplace context since the regulations came into force.

In summary, Shah told delegates that providing basic criteria is met there are very few limits at all on the power of employers to monitor workers.

In the Q&A session that followed the point was made that the impact of monitoring on the ability of trade unions to organise in the workplace was enormous, limiting the discussion trade union activities between workers in the workplace.

The next speaker, Alex Just, Old Square Chambers, then turned to Blacklisting, starting with a brief history and origins of blacklisting dating back to 1919. The Economic League began in the 1920’s and was eventually shut down in 1993 to be quickly followed by The Consulting Association. The ICO raided the offices of the Consulting Association and discovered some 3000 named paper files of individuals containing information relating to their work in the construction industry and trade union records. Many other files were not taken and were subsequently destroyed.

Alex went on to describe the current litigation which is being pursued by Unite, UCATT and GMB along with the Blacklist Support Group. Regular case management conferences are taking place in the lead up to a trial window of 11 weeks in May 2016. He told the delegates that a scheme set up by the employers to provide compensation to people on the blacklist has been castigated by the Scottish Affairs Select Committee as inadequate with a maximum of £20,000.

Relating the blacklisting issue to the recent phone hacking cases the similarities highlighted the relevance to the ECHR which infringed Articles 8(2), Article 11(11) and Articles 9(1) and 10(1). In terms of the causes of action Alex said that claims based on breaches of Data Protection Act 1998, Unlawful Means Conspiracy, Breach of Privacy / Misuse of Confidential Information and Defamation. Alex described the key legal questions and steps that were being taken to identify 20 lead cases and to obtain the court’s permission to accept expert witnesses.

He went on to assert that there were lessons for the labour movement from this litigation which demonstrated how the solidarity of trade unions can assist in the bringing of major legal cases. It also brings to public attention the positive role that trade unions can offer on accessing justice which otherwise, for most people, would be financially impossible. Finally Alex admitted that these large cases had meant that lawyers were having to become more familiar with the uses of high tech in compiling the masses of details necessary to set out proceedings.

The final speaker for the morning was Daniel Blackburn, Director of the International Centre for Trade Union Rights who spoke about the methods for raising human rights issues at an international level. Whilst accepting that such processes would not deliver large compensation awards they could nevertheless deliver other benefits. Aside from the well known processes through ILO and the ECJ there were process through the UN Treaty Bodies for certain aspects of human rights. He went on to talk about the Special Procedures of the Human Rights Council and the Universal Periodic Review. The latter process looks at an individual country performance in relation to human rights obligations. Trade unions along with NGOs are able to contribute to this process through “other stakeholders” report which is considered during the review. The report is considered during the deliberations of the Human Rights Council and at the end of the process stakeholders have a brief right to address the Council.

On special procedures of the Human Rights Council there are a number of specific issues which are relevant to the labour movement and the Council can be approached to include specific cases under a number of headings such as racism, transnational companies, discrimination against women and poverty.

Daniel went on to describe a separate process through the OECD which he said was a relatively fast and simple process to pursue through the Government’s Department of Business (DBIS). On the ILO process, Daniel suggested that it was relatively easy to insert representations to the regular national reports on ratified Conventions. He reminded delegates however that if thinking of going to the European Court of Human Rights beware of the parallel proceedings rulings.

In summary, Daniel turned to remedies and emphasised that this was not a legal process but procedures which help us to move countries in the direction of better application of human rights and which can also bring employers to a table when they are otherwise unwilling to do so.

The afternoon kicked off with Morag McDermont, University of Bristol Law School, talking about Article 6 and the right to a fair hearing. Her approach was built on a major research project currently being undertaken to explore the role of advice organisations in providing access to justice for workers. Her talk focussed on what a fair hearing should look like and emphasised that fees was just one factor in this.

Using a case study concerning an unrepresented worker, Morag demonstrated the obstacles which workers face in accessing a hearing including understanding the law and awareness of process. Relating this case to Article 6 of the European Convention of Human Rights, Morag explained that whilst the Article focuses on the right to a fair trial it is also about a fair hearing. The factors, she said, that apply include fairness in court proceedings, equality of arms, and provision of legal assistance for effective representation. She emphasised that getting the case into the tribunal was a major problem reflected in the report of the Beeching Committee 1969 which said “the excellence of the judiciary and the thoroughness and impartiality of legal procedure are of little avail to those who cannot get their cases into court.”

Posing the question “Do workers have ‘practical and effective’ rights? Morag questioned the reality of the UK process. She referred to the tribunal fee system now in place and the impact that their introduction had had on the number of applications (e.g. 81% drop in equal pay/sex discrimination/pregnancy cases). The fees had introduced a shift of power towards employers who were now less willing to negotiate and the remission system remains difficult and time consuming and includes partners earnings. She reminded the Conference that the Unison judicial review on fees had failed but a further case to the Court of Appeal awaited a decision in the next couple of months.

In addressing fairness in procedure, Morag highlighted the pre-claim conciliation process as an obstacle, the problems with language and the bullying from employers on threatening cost claims. In addition, the difficulties of representing yourself and the human costs to family, health and finance and the impact on future employment relations added to the difficulties faced by applicants. Morag argued that we should be seeking fair hearings through independent courts/ tribunals; better collaboration between trade unions and advice agencies and access to legal support; some minor cases could be dealt with by other processes; and she posed the question as to whether there should be a more inquisitorial system of justice.

Looking to the future, Morag pressed for more work to be done by government to ensure enforcement of employment tribunal awards.

Virginia Mantouvalou, Co-Director of the Institute of Human Rights at UCL spoke movingly about the human rights issues affecting domestic workers. Virginia had interviewed many migrant domestic workers as part of a research project and used quotes from this to demonstrate the problems faced by such workers. She referred to the Overseas Domestic Worker Visa ((2012) which allows overseas visitors to bring domestic workers with them. This visa ties the worker to the employer without the right to change employer regardless of treatment. Up to16,000 workers come to the UK each year on such visas which have been described as “slavery” by a number of NGOs.

Virginia interviewed 24 migrant workers who had come to the UK on such visas about their work and life before and since arrival. They experienced extremely low pay and had hardly any days off and were unaware of their rights. Their passports were taken off them and they were kept locked in the house. These violations of the terms of the visa leave them as undocumented workers and in a cycle of exploitation. The visa violates the provisions of Article 4 of the Convention of Human Rights – ‘no-one shall be held in slavery or servitude’ and ‘no-one shall be required to perform forced or compulsory labour’.

Virginia finished by referring to both positive and negative obligations imposed on the state. The UK is aware of the problems of exploitation but does nothing and because of the nature of the visa individuals should be protected by the government from the vulnerability they can face when they leave their employers. She felt that because of the slavery aspect that the visa produces, the broader question of labour rights for domestic workers remains to be tackled.

The final speaker of the day was Aileen McColgan from Matrix Chambers, who in addressing discrimination at work posed the question, can Article 14 assist? She started by saying that the provisions of the Equality Act provided such comprehensive regulation of discrimination that scope for Article 14 claims were relatively limited. However, there is scope where there are grounds for claims which are not covered by protected characteristics such as trade union membership. She went on to say that it was clear that where discrimination applies in relation to dismissal, claims could be brought under Article 14 providing there were not grounds for a straightforward claim under the Equality Act.

She also referred to domestic workers who were not covered by employment laws due to diplomatic immunity of the employer, who could use Article 14 in certain circumstances. She also referred to areas of the Equality Act where the provisions were not as good. Sexual orientation and gender re-assignment is regarded as very binary but modern understanding does not necessarily assume those boundaries. In such cases Aileen believed that Article 14 might be used to pursue claims of discrimination as the UK Act does not help.

There followed an interesting discussion on inter-sex status and the discrimination issues that this was now raising and the fact that the Equality Act fails to accommodate this.

Bringing the conference to a conclusion, Nerys thanked all the speakers and delegates for attending.

Speakers

Welcome from Chair. Nerys Owen, Labour Research Department

Human rights at work: A post-election overview.
Keith Ewing, President of the Institute of Employment Rights

Surveillance and Monitoring at Work: How much is too much?
Shah Qureshi & Peter Daly, Bindmans Solicitors

Blacklisting: No respect for private and family life.
Alex Just, Old Square Chambers

Raising complaints to International bodies.
Daniel Blackburn, Director, International Centre for Trade Union Rights

Access to justice, Article 6 and the right to a fair hearing
Morag McDermont

Human Rights for Domestic Workers
Virginia Mantouvalou, UCL

Discrimination at work: Can Article 14 assist?
Aileen McColgan, Matrix Chambers