Human Rights Act

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Rights and conditions
02 November 2016
The Human Rights Act 1998 has been lambasted by some as a constitutional disaster and lauded by others as a valuable first step towards a Bill of Rights to protect the individual.

The new Act, incorporating the European Convention on Human Rights into UK law for the first time, introduces a critical change: individuals are now able to challenge public authorities over alleged breaches of their human rights in the British courts.

Three areas of the Act have particular ramifications for schools.

The right to fair trial

This right does not arise only in the courts, but also in forums where an individual's civil rights and obligations' are at risk. It can be invoked over pupil exclusion hearings and student academic appeals - where the young person's 'civil right' to continue his education at a particular school or college is in issue.

The right to a private life

Historically, discrimination (including harassment) on grounds of sexual orientation has not been directly outlawed by UK legislation. But following a legal challenge in the European court of Human Rights, it is now recognised that if a public authority imposes a detriment on grounds of an employee's or a student's sexual orientation, this contravenes that person's right to a private life.

However, the Act permits restrictions on the right to a private life for the prevention of disorder or crime, for the protection of health, morals or the rights and freedoms of others (among others). This has recently become topical over the question of an employer's right to monitor staff activities at work (see this website's page on the right to privacy).

The assistant chief constable of Manchester, Alison Halford, won her human rights case against her employers in 1997 when (in direct breach of assurances to her) they tapped her telephone at work to eavesdrop on her conversations with legal advisers concerning her sex discrimination claim against them.

However, her victory doesn't mean staff have freedom to use their employers' facilities for private purposes. When implementation of the Act was imminent, the government introduced the Interception of Communications Regulations 2000.

These authorise employers to monitor staff e-mails, internet use and even telephone calls at work, provided they have a 'lawful' business purpose (such as to 'detect unauthorised use of the system'), and that they make all reasonable efforts to inform users of the monitoring.

The right to free expression

This does not only protect statements of opinions, but is considered to embrace expression in terms of style of dress - albeit subject to similar qualifications as above.

When in 1999 a transvestite careers adviser claimed a right to 'cross dress' at work, the European Court of Human Rights rejected his claim and upheld the employer's restrictions on his clothing, in accordance with the Article's qualifications.

Nevertheless, it is predictable that restrictions in maintained schools on female employees and pupils wearing trousers may face a challenge on freedom of expression principles. Dress codes have also been successfully challenged as unlawful indirect discrimination, where the case relates to religious observance.

See also