Article 14 Discrimination of Human Rights Act
The Human Rights Act 1998 (hereafter called HRA 1998) incorporates certain Articles of the European Convention on Human Rights (the “Convention”).
S.6(1) makes it unlawful for a public authority to act incompatibly with a Convention right. Additionally by action of the HRA 1998 domestic legislation must be applied in accordance with the Articles. Article 14 “Prohibition of Discrimination” states;
“the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
UK anti-discrimination legislation has been studied from the employment rather than constitutional angle; Bamforth (2004) for both domestic legislation; the Sex Discrimination Act 1975; Fredman (2002) and also European Community Law on sex discrimination (Bamforth 2004), and is the reason for the choice of question.
Sexual discrimination in the workplace undoubtedly exists with economic consequences; Equal Opportunities Commission (2001).
Types of sex discrimination
- Job advertisements
- Recruitment and selection
- Equal pay
- Sexual harassment
Indirect sex discrimination is where an unnecessary condition is applied equally to men and women but affects one sex more than the other; e.g. “height more than 6 feet” prejudices women. It is the need for the condition which needs to be justified not the discrimination.
- Dress code
- Lower rates for part time or reduced hours
- Pregnancy and maternity leave
- Hours of work issues
Article 14 states: 'Member States shall take the necessary measures to ensure that: any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished.” Any domestic rules which prevent someone brining a claim of discrimination could be contrary to Article 14; Hendy (2005).
Where a statute cannot be read compliantly with a Convention right a declaration of incompatibility may be made but the statute still be applied. Courts also appear bound to interpret common law in a way compliant with Convention rights. These matters also apply to private disputes between employer and employee since it is the interpretation of statute which has to pass the tests of conformity with EC law and Convention (Bamforth 2004).
Use of the HRA 1998 in Employment Tribunals (ET)
S.3 HRA 1998 requires ETs to interpret legislation in a way compatible with the Convention where possible and s.6(1) and s.6(3)(a) makes them public authorities which must act in accordance with the Convention rights
A claim cannot be brought for breach of a Convention right. The HRA 1998 means that the legislation must be interpreted such that it does not breach Convention rights. It has been determined by both the ET; X v Y  IRLR 471 and the Court of Appeal; Pay v Lancashire Probation Service  IRLR 129 that where dismissal is found reasonable under the Employment Rights Act 1996 it should be found so with regard to Convention rights.
Article 14 is not a free standing-right but states that it confers without discrimination equal enjoyment of Convention rights. It is hence a weak non-discrimination provision and it is limited to being used in conjunction with another Convention right (which need not necessarily have been breached).
Of some relevance to employment are Articles;
- 3 no inhumane/degrading treatment
- 4 no slavery/forced labour
- 6 fair trial
- 8 respect for private and family life
- 9 freedom of thought/religion
- 10 freedom of expression
- 11 freedom of assembly/association
When Convention rights are argued it is important they are proportionate to what is being argued lest a costs order result; Kopel v Safeway Stores  IRLR 753).
Article 14 carries a defence of reasonable justification and so has little role in supporting claims for direct discrimination under the Sex Discrimination Act 1975 which lacks this defence. It is in the indirect discrimination where it is useful. Disallowing flexible working hours indirectly discriminates against women in view of childcare needs. Article 14 could be used here together with Article 8. Article 8 has been used successfully regarding maternal choice of childcare arrangements but not for choosing to avoid Sunday working; Stedman v UK (1997) 23 EHRR CD 168. Dress codes can constitute indirect sex discrimination breaching Article 8 (freedom of expression) and Article 14; Moran v RBR International Ltd (2000) 2302546/00 London South ET. Article 9 “freedom of thought/religion” also relates to dress codes which may be indirect sex discrimination. In R (on the application of SB) v Head teacher and Governors of Denbigh High School 2005 the Court of Appeal decided forbidding a schoolgirl to wear a jilbab contravened Article 9. The case is under appeal. Problems surrounding maternity leave and allowance to breastfeed may breach Articles 8 and 14 and the HRA 1998 may strengthen a claim under the Sex Discrimination Act 1975.
The Equal Opportunities Commission recommends where a claim is strengthened by the HRA 1998 it is preferably worded as "Sex discrimination contrary to the Sex Discrimination Act 1975 read with the HRA 1998."
In Heath v Commissioner of Police for the Metropolis (2004) The Times, July 22, the Court of Appeal upheld an employment appeal tribunal that an internal disciplinary hearing of the police was quasi-judicial; Trapp v Mackie  1 WLR 377 and therefore immune from suit; Darker v Chief Constable of the West Midlands  1 AC 435, even regarding discrimination during the hearing; Underwood K 2005 Police Disciplinary Hearings and Judicial Immunity Emp Law & Lit 9.12(26).
Where domestic law is incompatible with a Convention right (unlike for an EC Treaty or Directive) the ET cannot disapply the domestic law and cannot make a declaration of incompatibility; Whittaker v P&M Watson Haulage (EAT 157/01, unreported).
ConclusionArticle 14 has an important supporting role in sex discrimination cases. Clarifying this role at an early stage in the ET process both encourages findings of actions that are not compatible with Convention rights whilst minimising risks of cases failing purely on Convention issues.
- Fredman S, 2002 Discrimination Law Oxford: Oxford University Press,
- Bamforth N 2004 Conceptions of Anti-Discrimination Law OJLS 24(693)
- Fredman S 2001 Equality: A New Generation? 30 ILJ (Industrial Law Journal) 145
- Hendy J 2005 Trade Unions, Human Rights and the BNP. ILJ 34(197).
- Equal Opportunities Commission http://www.eoc.org.uk/
- Equal Opportunities Commission (2001). Women and men in Britain: the Lifecycle of inequality available on http://www.eoc.org.uk/PDF/wm_lifecycle_of_inequality.pdf
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