The Bill of Rights: A new era for human rights and employment law?

Human rights are a feature of many important employment law cases.  From the EAT’s decision on religion and belief discrimination in Forstater v CGD Europe to the Supreme Court’s decision on whistleblowing rights for the judiciary in Gilham v Ministry of Justice, human rights considerations have played a part in many seminal employment law judgments.  With the publication of the Bill of Rights, the interplay between human rights and employment law is set to change.

Human Rights in the UK

The European Convention on Human Rights is an internationally binding treaty, which sets out minimum international standards for the protection of human rights.  Parties to the treaty, including the UK, are required to abide by the final judgment of the European Court of Human Rights in Strasbourg (“ECtHR”) whose role is to enforce convention rights.

The Human Rights Act 1998 (“HRA”) came into force in the UK in 2000, incorporating the convention rights into domestic law and allowing cases concerning convention rights to be brought in the UK courts and tribunals.  This meant that most claimants were able to avoid the cost and delay of bringing a claim before the ECtHR.

The Bill of Rights

The government published its Bill of Rights Bill on 22 June 2022.  The Bill will repeal and reform the HRA making fundamental changes to the enforcement of human rights in the UK courts.  Crucially, a number of key aspects of the current regime remain unchanged:

  • The UK will remain a signatory to the convention.
  • The scope of rights covered by the Bill is the same as those in the convention.
  • UK courts still have the power to make a declaration of incompatibility where they find that domestic legislation infringes the human rights protected by the convention.
What is changing?

However, changes are being introduced which will affect how human rights are enforced.

Permissions stage: A new permissions stage will be introduced under which claimants will be required to demonstrate that they have suffered significant disadvantage before a human rights claim against a public authority can proceed. 

Interpretation of domestic legislation: The power granted to courts to interpret UK legislation in a manner that is compatible with convention rights will be removed.  Under the Bill of Rights, courts will no longer be able to interpret or read words into legislation in order to make it compliant with the convention.  This may lead to an increase in courts making declarations of incompatibility.

Freedom of expression: The Bill provides that when determining questions which arise in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right, except in limited circumstances such as criminal proceedings or where an obligation of confidence is in issue.

ECtHR case law: While the HRA requires domestic courts to take account of ECtHR case law, there is no analogous provision in the Bill of Rights.  Instead, the Bill states that the UK Supreme Court is the ultimate judicial authority on Convention rights under domestic law and gives UK courts the power to diverge from ECtHR case law.

What will be the impact on employment law?

While it is still too early to predict the impact of the Bill of Rights on employment law, it has the potential to be far-reaching.  Many key employment law judgments have been premised on or involved human rights arguments.  

To take one example, the Supreme Court in Gilham v Ministry of Justice had to consider whether a judge who did not have worker status was entitled to whistle-blower protection under the Employment Rights Act 1996 (“ERA”) by virtue of convention rights.  Article 14 of the convention provides that rights must be secured without discrimination.  Ms Gilham argued that denying her whistleblowing protection by virtue of her status as an officeholder impinged on her enjoyment of her right to freedom of expression.  The Supreme Court found that she had been treated less favourably due to her status.  It resolved the incompatibility of the ERA with the convention by reading words into the legislation so as to include judicial officeholders in the definition of workers under section 230(3)(b) ERA.

Under the Bill of Rights, Ms Gilham’s claim may have been approached differently on a number of grounds:

  • First, Ms Gilham would have needed to show that she had suffered significant disadvantage in order for the claim to proceed.
  • Second, the Court may have adopted a different interpretation to the claim in light of the duty to attach great weight to freedom of expression.
  • Third, in the absence of any interpretative duty, the Court may have been unable to read words into ERA in order to render the legislation compatible.
  • Fourth, under the new regime a declaration of incompatibility in relation to ERA may have been a more likely outcome.
A long road

The Bill is at an early stage in its progress towards enactment.  However, if introduced in its current form, it has the ability to significantly shape and influence employment rights in the future.