House of Commons - Explanatory Note
Employment Relations Bill - continued          House of Commons

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EUROPEAN CONVENTION ON HUMAN RIGHTS

301.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by Section 1 of that Act). On 21 November 2003 the Secretary of State for Trade Industry and Minister for Women and Equality made the following statement:

    "In my view the provisions of the Employment Relations Bill are compatible with the Convention rights".

PART 1: UNION RECOGNITION

Information issues

302.     Clause 14 provides for the CAC to require that specified information about union membership and employment must be supplied to the CAC case manager. The CAC case manager must then prepare a report and submit it to the CAC. The report is supplied to both parties. The clause is intended to protect the privacy of workers' union membership details in accordance with data protection legislation and also to ensure that any determination of an application by the CAC complies with human rights requirements.

303.     Article 6 and particularly Article 6(1), the right to a fair trial in civil proceedings, has been held by the European Court of Human Rights to imply a right to participate effectively in civil proceedings. Implied fair trial guarantees in civil proceedings include that parties shall be given "equality of arms". However, it has been established that Article 6(1) only guarantees that a party has the right to have disclosed to him information supplied by another party relied on by the decision maker. (see, Lobo Machado v. Portugal (1996) 23 EHRR 79 para 31). It is arguable whether Article 6 is engaged at all on the basis that the CAC is not determining a civil right. However, to ensure "equality of arms" the clause provides for the CAC to make a decision on the basis of material disclosed to all parties in the case manager's report without considering the raw material supplied.

Demand for Costs

304.     Clause 10 provides a right of appeal against a demand for costs to the union and/or employer from a Qualified Independent Person, appointed to facilitate communication by the union with the workers in the bargaining unit and to conduct ballots. A question had arisen as to whether Schedule A1 of the 1992 Act was compliant with Article 6 to the extent that it did not provide those presented with a demand for costs with a right to a fair hearing to appeal these costs. The clause therefore introduces a right of appeal to provide for an Article 6 compliant hearing.

PART 3: RIGHTS OF TRADE UNION MEMBERS, WORKERS AND EMPLOYEES

Inducements and detriments in respect of membership etc. of independent trade union

305.     Clause 23 is specifically designed to make the law consistent with the judgment of the European Court of Human Rights in Wilson & the National Union of Journalists, Palmer, Wyeth & the National Union of Rail, Maritime & Transport Workers, Doolan & others v United Kingdom ("Wilson and Palmer") which related to the right to freedom of association (Article 11 of the Convention). The effect of the clause is to give a worker the following rights -

  • not to be made an offer for the purpose of inducing him not to be or to be a union member, not to take part in trade union activities or not to make use of union services; and

  • not to be made an offer by his employer, where he is a member of a recognised union, if the employer's purpose in making it is that he and other workers should no longer have their terms and conditions of employment determined by a collective agreement negotiated by the union.

306.     Clauses 24, 25 and 26 are also designed to make the law consistent with the Wilson and Palmer judgment. Clause 24 extends the protections that already exist against detrimental acts done on the ground of union membership or non-membership or participation in union activities to "workers" instead of, as now, to the narrower category of "employees". Clause 25 gives a new protection against detrimental acts done on the ground that a worker is making use of union services. Clause 26 makes it automatically unfair to dismiss an employee for making use of union services or for refusing an offer that contravenes the new rights given by clause 23.

Other rights of workers and employees

307.     Clause 27 amends the right of workers to be accompanied at certain discipline and grievance hearings by a fellow worker or trade union official by clarifying the role that the employer must allow the companion to play. It has been suggested that the Wilson and Palmer judgment means that if the companion is a union official he must be allowed to represent the worker at the hearing. However, the Department considers that no human rights considerations are raised by this clause.

308.     Clause 30 makes amendments to the Employment Rights Act 1996 to ensure that a person dismissed or made redundant in connection with flexible working can bring a claim for unfair dismissal without needing to meet the normal one year's continuity of employment requirement. The determination of rights under the clause will be made through the existing tribunal system and will raise no new issues in relation to Article 6 of the ECHR.

309.     Clause 31 empowers the Secretary of State to make regulations giving employees a right to be informed and consulted by their employer. Since this is only a power, it does not in itself raise any human rights issues. However, the regulations made under this power will need to comply with Article 6(1) (the right to a fair trial) to the extent that they relate to the determination of civil rights. Sufficient safeguards will be put in place in the regulations to ensure that this is the case.

PART 4: ENFORCEMENT OF MINIMUM WAGE LEGISLATION

310.     The purpose of Clause 32 is to allow enforcement officers, when investigating an alleged breach of the National Minimum Wage Act 1998, or an alleged breach of the legislation relating to the agricultural minimum wage, to inform the worker complaining of a breach what that worker's employer has told the enforcement officer about the worker or the worker's complaints or what that worker's employer's records have revealed about the worker or the worker's complaints. Conversely, this clause allows enforcement officers, when investigating an alleged breach, to inform the worker's employer what that worker has told the enforcement officer about the employer.

311.     Prima facie, it could be argued that this clause engages Article 8(1) of the ECHR: "everyone has the right to respect for his private and family life, his home and his correspondence". Such an argument would run that the release or disclosure of personal information by state authorities (here an enforcement officer) is a violation of one's "private life" and assumes that "private life" encompasses one's working life. We consider, however, that since Clause 32 only permits the disclosure to a person of information relating to or about such a person, it is difficult to see how Article 8(1) is engaged in the first place (the position would, of course, be different if clause 32 permitted this disclosure of information about a person to a third party).

PART 5: THE CERTIFICATION OFFICER

312.     Clause 35 gives the Certification Officer ("CO") the power to strike out proceedings before him on the ground that they are scandalous, vexatious, have no reasonable prospect of success or are otherwise misconceived, that they have been conducted in a vexatious or unreasonable manner or that there has been excessive delay in proceeding with them. The clause potentially engages Article 6(1) of the ECHR (the right to a fair trial in civil proceedings) and steps have been taken to ensure that the clause is consistent with that Article.

313.     Clause 36 adds proceedings before the CO to the proceedings that the Employment Appeal Tribunal may take into account in determining, under section 33 of the Employment Tribunals Act 1996, whether to make a restriction of proceedings order. This is an order preventing a person from bringing further proceedings without consent on the ground that a person has persistently taken vexatious proceedings. It also has the effect that the person subject to a restriction of proceedings order cannot bring proceedings before the CO. Section 33 engages Article 6(1) and is consistent with that Article; the addition of proceedings before the CO to the scope of section 33 raises no new issue in relation to the Article.

 
 
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Prepared: 4 December 2003