Following the last post on European Works Councils post-Brexit, UK employers should be aware of the continued relevance of the European Convention on Human Rights (ECHR) and keep on top of recent developments to ensure they are prepared to respond if human rights issues are raised in the workplace.
Is the UK still committed to the ECHR?
For now, the UK is still a participant in the ECHR, and UK Human Rights cases can still be heard by the European Court of Human Rights (ECtHR). The commitment was established in 2019 in a political declaration between the EU and the UK. The declaration highlights the UK’s ongoing commitment to respect the framework of the ECHR. The parties also declared that future arrangements should be underpinned by long-standing commitments to the fundamental rights of individuals, including giving effect to the ECHR.
The Brexit Trade Agreement codifies this commitment, but only to an extent – there is no specific mention of the ECHR and the drafting is vague on the consequences of withdrawing from the commitment.
The UK’s ongoing commitment to the ECHR is therefore uncertain as there is nothing to prevent the UK from withdrawing as a participant or limiting the application of the ECHR, e.g. by repealing or amending the Human Rights Act 1998 (which made available, for the first time, a remedy for breach of the ECHR in the UK courts). For the time being, we advise UK employers to keep on top of case law developments from the ECtHR, such as the recent high profile judgment of Lee v United Kingdom [Application no. 18860/19] (often referred to as the “support gay marriage cake case”).
ECHR Case update: Lee v United Kingdom [Application no. 18860/19]
The key takeaway from this case is that litigants should plead Convention rights expressly (or in substance) domestically before applying to the ECtHR.
The Claimant had brought a claim for breach of Northern Ireland anti-discrimination laws against a bakery following their refusal to supply him with a cake iced with a message in support of legalising same-sex marriage. The Supreme Court ultimately dismissed the claim, following which Mr Lee complained to the ECtHR on the basis that the Supreme Court’s interpretation of the anti-discrimination laws had infringed his rights to the following European Convention Rights:
- private and family life (Article 8)
- freedom of thought and conscience (Article 9)
- freedom of expression (Article 10)
- freedom from discrimination (Article 14)
The complaint about the Supreme Court’s judgment was inadmissible. The Claimant had not invoked those Article rights domestically and so the ECtHR held that the Claimant had not exhausted his domestic remedies. As such, the claim could not be heard by the ECtHR.
After years of press attention, the final conclusion of this case – it being rejected on procedural grounds – falls someway short of previous headline-grabbing decisions at earlier stages in the litigation. However, the main takeaway from this decision is an important one, namely that Convention rights and the “substance” of the Convention complaint have to be raised in domestic courts first in order to proceed to the ECtHR. If litigants do not do this, it is unlikely the ECtHR will entertain such claims.
As mentioned above, these cases will only continue to be relevant for UK employers for as long as the UK remains committed to the ECHR, so we will be interested to see how this develops in the coming years. For now, we would advise staying on top of these developments in case proceedings do go down the ECtHR route or where Convention rights are raised at an early stage in a dispute.