Does the recent European Court of Human Rights decision actually ban employee email monitoring?

You’ve probably seen the recent headlines: ‘Employer breached employee’s human right to privacy by reading workplace emails’, ‘Employers can’t place employee communications under surveillance due to human rights’, et cetera, et cetera.

The thing is, broadly speaking and barring one key exception, those headlines are wrong.  Why?  Firstly, because the facts of the case were unusual and, secondly, because the employer failed to do something which, nowadays, is standard practice and commonplace.

Let’s look into these two points briefly.

ECHR rules on principle of secularism versus religious beliefs

For many years France has been renowned for its strict adherence to a secular approach in public services. Known as laïcité, it is an ideology which, for many, goes some way to defining what it means to be a modern French person. The approach follows the formal separation of church and state in 1905. There are no hymns or religious assemblies in schools and absolutely no chance of a nativity play at this time of year.

In 2004 the principle of secularism was challenged when thousands of French women and schoolchildren took to the streets to protest their right to wear headscarves in schools. There were technical rules which ought to have allowed Muslim women to wear headscarves in government run establishments such as schools but attempts to do so frequently led to local protests and bans. In February 2004 President Chirac introduced legislation to ban the wearing of all “ostensible religious insignia” in state schools. The legislation was passed easily, by 494 votes to 36.

Fast forward to 2015 and the same issue has been before the European Court of Human Rights in a case which, remarkably, stems from the non-renewal of a fixed term contract in 2000. In Ebrahimian v France, Ms Ebrahimian is a French national who was born in 1951. She was employed on a fixed term contract as a social worker in the psychiatric department of Nanterre Hospital and Social Care Centre. Her contract ran from 1 October to 31 December 1999. On its expiry the contract was extended by one year to 31 December 2000.

On 11 December 2000 Ms Ebrahimian was informed by HR that her contract would not be renewed because she would not remove her headgear when working and following complaints from patients. In a letter sent by the Director of HR she was reminded of a Government declaration that “while the freedom of conscience of public officials was guaranteed, the principle of the secular character of the State prevented them from enjoying the right to manifest their religious beliefs while discharging their functions; accordingly, wearing a visible symbol of religious affiliation constituted a breach of a public official’s duties”.

Ms Ebrahimian applied to the Paris Administrative Court, as a result of which she was put forward as a candidate for the post of social assistant. However she did not participate in the recruitment process. In October 2002 the Court found that the decision not to renew the contract was in accordance with the principles of secularism and neutrality of public services.

In a further judgment delivered in February 2004 the Administrative Court found that there had been procedural errors. However in May 2005 the decision not to renew the contract was again confirmed. An application to the Versailles Administrative Court to set aside the decision was unsuccessful, as was an appeal to the Administrative Court of Appeal.

Ms Ebrahimian appealed to the European Court of Human Rights in October 2011. In its judgment, issued on 26 November 2015, the ECHR noted that the reason for non-renewal of the contract was her refusal to remove her veil, which was an expression of her affiliation to the Muslim faith. This had to be regarded as interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights.

why do politicians “do God” and how does a “Christian UK” sit with employment law?

A great deal of hot air has been generated as a result of David Cameron’s decision to play up his faith in the Church of England. His article suggests a warm beer and village greens approach to his Christianity – “…I appreciate its liturgy, and the architecture and cultural heritage of its churches. My parents spent countless hours helping to support and maintain the village church that I grew up next to, and my Oxfordshire constituency has churches – including some medieval masterpieces – that take your breath away with their beauty, simplicity, and serenity”. While this contribution nearly led the political debate over the Easter weekend (Alastair Campbell’s pithy deconstruction of the article from a political perspective – “We had the warm up act with his ‘Jesus invented the Big Society’ and now the full Monty as Easter nears), pushing down the headlines Ukraine and Syria, much more interesting from an employment law perspective is what is meant by “a Christian country” and how that interacts with, say, equality and human rights law.

According to YouGov poll in late 2012 76% of Britons say that they are “not religious”, whereas 56% say that Britain is Christian and 61% agree that it should be. What does being a Christian country mean? Manifestations include the royal Coronation service and oath, the latter including the following fairly unequivocal obligation:

Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law? Will you maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England? And will you preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them?

Parliament convenes with Christian prayers and bishops sit in the House of Lords.

Justice Secretary Grayling to use EAT case as political challenge to EU law

Last October Joshua Rozenberg reported in The Guardian that a recent case concerning Moroccan workers in diplomatic missions in London resulted in failed claims for unfair dismissal, unpaid wages and breaches of the Working Time Regulations because the employers were able to claim state immunity. I commented about the case last November.

It has now emerged that the Justice Secretary, Chris Grayling, intends to use the case as a way of challenging “creeping” increases in the influence of EU law in British cases. It is part of the Tories’ wider campaign to be seen to be taking a strong line on Europe in the run up to elections and in the face of what is regarded as a significant challenge from UKIP.

While much is made of the effect of the European Convention on Human Rights, particularly in the context of immigration cases, these decisions only have to be taken into account by courts in the UK. However legal practitioners, particularly in the field of employment law, have been dealing with the direct application of European law for decades. Cases are often referred to the European Court for guidance and decisions of the European Court can be directly applied in employment cases in England and Wales.

The crucial difference is that some claims can be brought based on the direct application of EU law. That happens with claims, such as these, based on the EU’s Charter of Fundamental Rights, enshrined in UK law by virtue of the Lisbon Treaty in 2009. Significantly these rights would remain even if the UK withdraws from the European Convention on Human Rights.

religion in the workplace – unsurprisingly a lack of clarity from the ECHR but some pointers for employers

Last month I reported the decision of the Employment Appeal Tribunal in the case of Celestine Mba v London Borough of Merton and, as promised, I am now returning to the issue of religious observance in the context of employment law.
The decision of the European Court of Human Rights (ECHR) in the combined cases of Eweida, Chaplin, Ladele, and McFarlane has unsurprisingly attracted a good deal of attention, and it seems certain to have a big impact. All of the cases centred around the right to manifest a religious belief, and whether UK law protected that right sufficiently. Two of the cases concerned how far an employer has to accommodate an employee’s wish to wear a necklace with a crucifix pendant at work, and the others concerned a relationship counsellor and a registrar respectively, who did not want to perform those parts of their jobs which conflicted with their views on same sex relationships, which in turn were based on their Christian beliefs.
In the cases relating to the wearing of crosses one failed, the ECHR taking the view that the employing health authority’s health and safety concerns justified their “no crosses” rule. The other succeeded because British Airways’ wish for corporate uniformity did not justify a rule which hampered an employee’s freedom of expression. Neither of the cases in which an employee wished to opt out of duties they regarded as inconsistent with their religious beliefs succeeded. In these cases there was a need to balance the right to manifest a religious belief which entailed disapproval of homosexuality and the right not to suffer discrimination on the ground of sexual orientation – within which there is a fairly broad margin. In the case of the registrar, the employer’s legitimate aim of providing a non-discriminatory service justified their decision to insist that all registrars conduct civil partnership ceremonies. Another factor to weigh in the balance was the question of choice – the relationship counsellor had gone into the job knowing what the duties entailed and that he could be required to perform duties he regarded as inconsistent with his beliefs, namely offering psychosexual counselling to same sex couples.
However, the tricky overlap between religion and employment law remains. Notwithstanding the decision of the European Court the Most Reverend Dr John Sentamu, Archbishop of York, unsurprisingly takes the view that entitlement to demonstrate religious observance should prevail:

political beliefs should be protected

In Redfearn v UK, the European Court of Human Rights (ECHR) has ruled on whether an employee who was an elected BNP councillor was entitled to protection from dismissal on the grounds of his political associations.
Arthur Redfearn was disabled and drove a bus for disabled people. He was rated as "first class employee" by his Asian supervisor. He worked for Serco, which had a contract to drive schoolchildren and others for Bradford City Council. When he was elected, the Council decided to dismiss him because they were concerned that his continued presence could be a health and safety risk if it provoked attacks on vehicles and/or could result in the Company losing the contract. He had not got the necessary qualifying service (one year, at that time) to make an unfair dismissal claim, so he made a claim for direct and indirect race discrimination, which failed in the Court of Appeal; there was no direct discrimination and any indirect discrimination was justified.
He then took his case to the ECHR, arguing that the lack of unfair dismissal protection meant that UK law did not adequately protect his rights of association and to freedom of expression. The ECHR upheld his claim: while the primary obligation is on the state (rather than private employers) to uphold human rights, it had an obligation to provide protection from dismissal on the grounds of belonging to a political party, including for those with less than a year’s service. Further, it commented that Article 11 protects not only “persons or associations whose views are favourably received or regarded as inoffensive or as a matter of indifference, but also those whose views offend, shock or disturb”.