By John Bowers QC and Jeremy Lewis
Publisher: Sweet & Maxwell
Price: £125
Since October, the Human Rights Act (HRA) has been in force, and therefore the European Convention on Human Rights has been incorporated directly into English law. Some consequences of these changes are already clear. The prediction made by Lord Hope in 1999 that “the incorporation of the [convention] will subject the entire legal system to a fundamental process of review and, where necessary, reform by the judiciary” is already proving to be true.
Employment law is one of the fields of English civil law on which the impact of the convention is greatest. The employment tribunals report that numerous HRA points are being advanced in argument, yet tribunal decisions are not generally reported, and there will inevitably be a delay before we see reported appellate decisions on the application of the convention by tribunals. In the meantime, the subject has provoked a flood of articles, commentary and treatment in text-books, some of it reflecting more haste to get into print than careful analysis. For example, one textbook for corporate lawyers deals with the convention right to a fair trial in the context of the disciplinary procedures of private companies and contains the startling and plainly erroneous proposition that “for private companies the standards of fairness applied to their procedures by an employment tribunal will be those of Article 6″.
Against this background, it is a pleasure and a relief to read Employment Law and Human Rights by John Bowers QC and Jeremy Lewis. The authors begin by providing an introduction to the convention and the act, in the course of which they provide a short but cogently reasoned account of how judges should approach the task of construing legislation in accordance with convention rights. They identify the similarities to, and the differences from, the now-familiar task for a court of interpreting domestic legislation to give effect to European community law. This part of the work is likely to be of particular help to tribunal chairmen. The introductory section provides little account of the historical background and context of the Convention. Any reader coming to the subject for the first time would probably wish to have read the section on that subject in one of the more general works, such as Wadham and Mountfield’s volume in the Blackstones Guide Series, before turning to this more specialised work.
The authors consider in turn each of the relevant articles of the convention, referring to the Strasbourg case law, relevant domestic legislation and case law, and, in passing, discounting some of the more ingenious suggestions made by commentators as to the effect on established law.
For example, much has been written about the impact of the right under Article 8 to respect for private and family life. One writer had suggested that some restrictive covenants in employment contracts might be struck down, if the effect of them might be to present a former employee with a choice between not earning a living or spending nights or weeks away from home, spouse and children.
The present writers’ remark, surely correctly, that since any such covenant must be an express term of the relevant contract, its consensual nature, together with the fact that it would under existing law be upheld only if it was appropriate to protect a legitimate interest of the employer, is likely to leave little scope for the further argument that the covenant amounts to a disproportionate interference with the right to respect for family life.
The provision of the convention that has attracted most comment in the interest of employment law is the right under Article 6 to a fair trial. The treatment of this subject by these writers is particularly well structured, clear and helpful and is likely to be adopted as a handbook by many tribunal chairmen.
This admirably lucid, concise and cogent exposition of the law deserves to become a standard text.
Colin Goodier is head of the employment department at Pinsent Curtis Biddle and part-time chairman of employment tribunals.
