A guest post by David Renton, author of the forthcoming Struck Out: Why Employment Tribunals Fail Workers and What Can be Done and barrister at Garden Court chambers in London.
The Guardian reported on Friday the case of Sarah Streatfeild, a violinist of 25 years’ standing with the London Philarmonic Orchestra (LPO), who was suspended after signing an open letter calling on the Proms to cancel a performance by the LPO’s Israeli counterpart.
It appears from the reports that the case has been framed in terms of Ms Streatfeild’s rights as a humanist, not to suffer discrimination. But it will be interesting to see whether (assuming her case does come to court) Ms Streatfeild goes further and relies in her case on the protection on freedom of expression provided by article 10 of the European Convention of Human Rights.
Perhaps surprisingly, the Convention has until now made relatively little dent in employment law. One obvious area of contrast is the policing of terrorism suspects, where in 2004, the House of Lords defied the government in holding that the European Convention outlawed the indefinite detention of foreign nationals in Belmarsh (A and others v Secretary of State for the Home Department).
It is the same picture in family law, where judges relying on the Convention overturned a decades-old convention against cross-examining children who accused adults of physical or sexual harm (Re W). In housing law, meanwhile, the Convention has been used to give tenants protection against eviction, even in cases where legislation seems to have been written with the intention that certain kinds of tenant would have no defence to claims for possession (Manchester v Pinnock).
One of the reasons Employment Tribunals have lagged behind is the pure happenstance that the first cases involved workers who were accused by their employer of serious misdoing, and relied on the Convention to bolster what were essentially weak unfair dismissal claims. One high-profile case involved a worker for a charity working with young offenders who was cautioned by the police after being caught having sex with another man in a toilet, and hid his caution from his employer. Another involved a probation officer, whose duties included the treatment of sex offenders, who in the evenings and at weekends was a director of an organisation selling sex toys and organising bondage-themed events.
Judges were extremely cautious to be seen pushing the law forwards in cases which they perceived to involve the rights of marginal groups, and where the purpose of the claimants’ lawyers was to challenge areas of employment law (such as the question of when a dismissal is unfair) which have been repeatedly litigated, and where their legal answers are generally perceived to be relatively clear.
An increasing number of cases however involve conduct by employers which on the face of it breaches workers’ rights – whether, as in Ms Streatfield’s case, her right to freedom of expression; or, as in other cases presently before the Tribunal system, the rights of blacklisted construction workers.
The Convention, it seems, is becoming an increasingly important part of ordinary employment law.
Why Employment Tribunals Fail Workers and What Can be Done
“‘How can employers and the government argue that employment rights are a burden on business at the same time as so many workplace injustices go unremedied? In the context of a debate over employment law reform that is in danger of being overwhelmed by rhetoric and misinformation, this book will be essential reading for its empirically grounded and dispassionate analysis of what has gone wrong and how it might be put right.'” – Simon Deakin, Professor of Law at the University of Cambridge.
“‘Employment law in this country isn’t written for working people’ – I’ve lost count of how many times I’ve heard that at union meetings. But when you’re the person victimised at work, then we all hope Employment Tribunals will deliver us justice. With this excellent step-by-step explanation of how the system works in reality, David Renton explains why it so rarely does. Blacklisted workers have experienced the process first-hand and know this book is true.” – Dave Smith, Blacklist Support Group