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David Renton The Human Rights Convention and the Tribunal

David Renton The Human Rights Convention and the Tribunal. The European Convention on Human Rights. Article 8 of the European Convention provides that: 1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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David Renton The Human Rights Convention and the Tribunal

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  1. David Renton The Human Rights Convention and the Tribunal

  2. The European Convention on Human Rights

  3. Article 8 of the European Convention provides that: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  4. Human Rights Act 1998 • Section 3 Interpretation of Legislation • … So far as it is possible, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights… • Section 6 Acts of Public Authorities • (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right... • (3) In this section “public authority” includes— . • (a) a court or tribunal, and

  5. Halford v United Kingdom (1997) 24 EHRR 523 There is no evidence of any warning having been given to Ms Halford, as a user of the internal telecommunications system operated at the Merseyside police headquarters, that calls made on that system would be liable to interception. She would, the Court considers have had a reasonable expectation of privacy for such calls …

  6. Wilson and Palmer v United Kingdom [2002] IRLR 568 It is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempt to regulate their relations with employers.

  7. X v Y [2004] IRLR 625 “In private employment disputes, the employment tribunal, so far as it is possible to do so, must read and give effect to s98 and the other relevant provisions in Part X of the ERA in a way which is compatible with the Convention right in article 8 and article 14”

  8. Copsey v Devon Clays [2005] IRLR 811 “Courts do not have access to the same range of expertise or to the same consultative procedures as legislation. Neither judges nor lawyers have relevant knowledge or experience. The adversarial trial processes in the courts and tribunals are not suited to deciding questions of this kind.”

  9. Rowstock Ltd and another v Jessemey and Equality & Human Rights Commission [2013] IRLR 439 EAT  • S108 EA 2010 • “(1) A person (A) must not discriminate against another (B) if— • the discrimination arises out of and is closely connected to a relationship which used to exist between them, and • (b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act... • (7) But conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A.” • “We are unanimously of the view that such a reading - or indeed any interpretation of that subsection which has the effect of creating a cause of action for post-relationship victimisation -  would be an interpretation flying directly in the face of what Parliament has actually enacted in section 108 (whether for ‘good’ reason or ‘bad’ reason or through error or inadvertence). That would represent a “Rubicon which the courts may not cross” ... and we cannot legitimately “repeal, delete, or contradict the language of the offending statute””

  10. Onu v Akwiwu and another [2013] IRLR 523, EAT per Langstaff J If, contrary to our primary view that the Act renders post-termination victimisation actionable, Mr. Dutton’s arguments that “employer” means the same in Section 39 for both direct discrimination and victimisation, and must (on his approach to Section 108) mean “current employer” (since the fact that Section 108 is necessary to provide for relationships which are ended indicates that, without the Section, there would be no liability) had sufficient force to cast real doubt on the correct domestic interpretation of the statute, there would nonetheless be sufficient ambiguity about the proper meaning of the statute to require resort to the “Marleasing” approach.  We could not conclude, as Ghaidan v Godin-Mendoza [2004] 2 AC 557 mentions, that to interpret the act as we do would be contrary to the grain of the legislation.  The whole legislation is designed to prohibit discrimination in many contexts.  It regards victimisation as reprehensible.  The grain of the legislation is in favour of the approach we would support.

  11. www.gardencourtchambers.co.uk

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