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As an employee As regards employment law, there are a number of Articles of the Convention which may be relevant. Firstly, ARTICLE 6 guarantees everyone a fair and public hearing within a reasonable time by an independent and impartial tribunal (see also Criminal law, Civil litigation and Company and Commercial law). Although Article 6 applies to employment disputes generally, the situation is more complicated in regards to public sector employees. In principle, disputes concerning public sector employees are not covered by Article 6. There are however exceptions to this rule. Article 6 will apply to disputes where the employee in question does not undertake duties designed to safeguard the general interests of the State, or where these duties do not entail participation in the exercise of the State's powers. This functional test was imposed by the Court in the case of Pelligrin v. France. Simplified one might say that the more important the employee's work for the State is, the less likely it is that Article 6 will apply. The European Court has also held that Article 6 is applicable in several cases involving the employment of doctors such as disciplinary proceedings. The right to freedom of expression as covered by ARTICLE 6 is also relevant in an employment context. This right will come up in relation to for example dress codes at work and restrictions on political activities of employees. It is acknowledged that the right to freedom of expression under Article 10 may include the right to express ides through dress. However, Article 10 is what is called a qualified right, which means that it can be subject to restrictions. Issues of dress code will therefore involve an assessment of whether the imposition of a dress code pursues a legitimate aim and whether it is necessary in a democratic society. The same assessment has to be made concerning political activities. The Convention also contains a right to freedom of assembly and association in ARTICLE 11. This has been interpreted as to contain the right not to join a union, but has been given a conservative interpretation as regards the right enjoyed by trade unions and their members. Article 11 does not secure any particular treatment of trade union members by the State, and is like Article 10 a qualified right. As discussed in Company and Commercial Law, the right to respect for private life as covered by ARTICLE 8 extends to company or business premises. In addition, the European Court has found a violation of Article 8 where an employer monitored an employees telephone calls made on her office telephone without her permission (Halford v. the United Kingdom). However, Article 8 is like Articles 10 and 11 a qualified right and when deciding similar cases the European Court has to make an assessment if the interference has a legitimate aim and if it is proportionate in a democratic society. Prohibition of discrimination can also be relevant in an employment context, However, the European Convention on Human Rights does not contain a free-standing anti-discrimination provision. The prohibition of discrimination contained in ARTICLE 14 has to be argued in conjunction with another Article. One might for example argue a violation of Article 8 together with Article 14 in that an employees telephone calls have been monitored on the basis that he/she belongs to a particular religion. |
