PJH law have spotted an interesting employment appeal case in which an employer has essentially succeeded in having a claim struck out on human rights grounds: to continue would breach its right to a fair hearing under the article 6 Convention right. PJH law links to the judgment: the key passage is from paragraph 49.
A very interesting approach, but the facts were unusual: the claimant had chronic fatigue syndrome, which was what led to her dismissal: she’d been off sick for nearly three years. She made her claim in early 2004 for her unfair dismissal and disability discrimination, but the case kept being put off because of her illness, until nearly three years later the ET struck her out – no doubt feeling tempted to make insensitive chronic fatigue jokes.
Two interesting points: first, it’s yet another demonstration, if any were needed, that firms, not just individuals, enjoy Convention rights under the Human Rights Act. It’s astonishing how often people assert, often with great confidence, that they don’t. There was a suggestion early on in the political history of the HRA that the rights should only be given to natural persons – companies, under that approach, would only be able to enforce their rights via the ECtHR in Strasbourg. I think if I remember right, Liberty advocated that approach. I think that has a lot of attractions (some of the rights claimed by companies have made a mockery of the whole concept of human rights – I’m thinking especially of this case) but there’d have to be exceptions. The article 10 freedom of expression can only properly be protected, for instance, if newspapers, publishers, theatre producers and broadcasters can go to court. Perhaps article 6 is another exception: arguably article 6 cannot be properly applied in civil cases unless each party can rely on it. So I’m not against the general idea that employers should have the right to a fair hearing too, in this type of case.
The other point is that clearly, in such a case, one side’s right to a hearing – the claimant’s here – in a sense has to be balanced against the other’s right for that hearing to be fair, and within a reasonable time. As the EAT said, these different elements of the right are separate (see para. 45 of the judgment) so you can’t say the employer only gets its right to fairness if the claimant first gets her right to a hearing. But I would have thought a tribunal must feel sure fairness is impossible to achieve before the balance shifts so far as to deny the claimant the right to a hearing.
The judgment refers to another ruling in a case called Abegaze which I can’t find yet, but will set out the applicable principles in greater detail: I’ll link to it when I can.
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