Professor Sandra Fredman, Elaine Banton and Dr Philippa Collins.

Q1 Chair: Welcome to today’s meeting of the Joint Committee on Human Rights. We are a cross-party and joint committee, which means we have Members from both the House of Commons and the House of Lords. This oral evidence session is the first session of our new inquiry into human rights at work. We will be taking a look at some of the human rights issues that may arise in the workplace, the relevant obligations on states under the European Convention on Human Rights, and how rights at work are currently protected in domestic law.

We are delighted to be joined by three witnesses this afternoon. We have Professor Sandra Fredman, professor of the laws of the British Commonwealth and the USA at the University of Oxford. She has written and published widely on antidiscrimination law, human rights law and labour law. Secondly, we have Elaine Banton, a barrister at 7BR Chambers, where she heads the employment team. She acts for employees and employers in all areas of employment law, including discrimination, whistleblowing and equality issues such as equal pay. She has written on employment law issues, including contributions to Tolley’s Employment Handbook. Last but most certainly not least, we have Dr Philippa Collins, a senior lecturer in law at the University of Bristol and author of the book Putting Human Rights to Work. Welcome all. We are delighted to have you with us this afternoon.

I will take the Chair’s privilege and kick off with the first question, which is in very general terms. As I said, during this inquiry we will be looking at how well human rights are protected at work, including those set out in the European Convention on Human Rights and other international instruments. Starting with Professor Fredman, would you outline some of the human rights issues that arise in the workplace in general terms?

Professor Sandra Fredman: Thank you very much for inviting me. I am very honoured and privileged to be here. Human rights are aimed at protecting individual freedoms, particularly against powerful bodies. The obvious place of imbalance of power is the workplace, which is a site of power imbalances between workers and employers.

In this country, as we know, there is only quite a recent tradition of domestic protection of human rights per se, expressly through the Human Rights Act 1998. Through most of the 20th century we did not really talk about human rights at work; we talked about workers’ rights, employees’ rights, labour standards, et cetera. In fact, until the 1970s, it was mostly through collective action that workers’ rights were protected, and then in the 1970s, which is still the structure of individual employment rights, we got protection particularly against dismissal, against redundancy, and separately all the antidiscrimination statutes. Whereas in other countries that might have come from a constitutional protection of the right to equality, in this country it came from statute.

All the relevant rights that people have outside the workplace are also there and even heightened in the workplace, including freedom of speech, freedom of association, privacy and freedom of religion, yet they were mostly protected through statute until the Human Rights Act came in. It is since 2000 when the Human Rights Act 1998 came in that we have been talking expressly about human rights at work. That is very important because, first, the statutory protection of workers, which was primarily premised on an employment relationship of employees in formal employment, is no longer a very good fit for a labour force that has changed hugely; there is much more flexibility, there is a lot of contracting out, and there is a whole group of workers who are much more precarious and who are not protected by employment statutes, except for the ways that we will talk about shortly.

The other reason why the Human Rights Act is very important is that, for collective rights, the collective statutes have generally been formulated more in terms of what we might call immunities against civil action, and that sounds like a privilege rather than a right. It is very important that, for example, freedom of association, which is Article 11 of the European convention, is now formulated as a positive right, and any limitations need to be justified. In short, all the rights that people have outside the workplace need to be protected, potentially even in heightened form, because of imbalances of power in the workplace. The language of human rights is very important in order to achieve that.

Chair: Thank you. Elaine, would you like to add anything?

Elaine Banton: That is right. It is a broad system, but how it actually works is very complicated. I know we will dig into that later. I agree with everything that Sandra said.

Chair: Thank you. Philippa, would you like to add anything?

Dr Philippa Collins: I want to add something more concrete. If we are thinking about how human rights issues actually arise in practice, what are the kinds of facts that we see? What is the meat on the bone of the issue for individuals who are the victims or potential victims of these kinds of infringements? As Sandy said, there is a significant imbalance of power, and the employer has a lot of very lawful capacities in their workplace to manage and to discipline their workforce, but, of course, a lot of that can be used in a manner that infringes on your human rights.

If we think about the capacity even to set a dress code, you can imagine that that could infringe particularly on religious freedoms. You may wish to wear a cross or a turban, and if that was restricted it would, of course, touch on your right to manifest your religion. Similarly, shift patterns; all the things that we see as quite basic functions of an employer actually have quite strong relationships to the enjoyment and the exercise of human rights in the workplace.

There are other things that are perhaps quite current. Particularly during Covid, we saw a huge amount of reporting on surveillance of workers. Obviously, any form of surveillance, whether using a Zoom call to keep tabs on your workers while they are at home, or perhaps using CCTV in the workplace or reading emails, which is a company policy of some companies, are all going to touch on the right to privacy.

The disciplinary sanctions are the more severe end of what employers are able to do with relation to their staff. All kinds of disciplinary measures such as firing somebody and other measures such as suspensions and investigations can all touch on your human rights in the workplace. The reason why you have been dismissed might be to do with your political speech. People who have taken public office that has been quite contentious have been dismissed as a result. That is a serious infringement on your freedom of expression and your political freedoms.

Issues that arise in relation to your private life, such as who you are in a relationship with, who your friends are, who you are communicating with and how you communicate with them, via Facebook for example, can all be invoked by employers as a reason to dismiss you or to discipline you. You can see that how we go about disciplinary measures, investigations that use social media evidence, which is increasingly common, and the reason why someone might be disciplined can all prompt a human rights concern both for the individual and for the company, which you hope would be thinking about that issue. That is how I was thinking in more practical terms about how these issues arise.

Q2 Baroness Kennedy of The Shaws: We generally think of human rights as applying vertically; that it is the state. Of course, what you are describing is something that is not vertical as between the state and citizens, but horizontal between private parties such as private sector employers and employees. How does the convention apply in workplaces? Is there a distinction between public service and private sector jobs? Professor Fredman, perhaps you might go first.

Professor Sandra Fredman: It is absolutely correct that the Human Rights Act and the European convention bind the state. The duty of the state is not only confined to restricting itself from intervening in people’s rights; it also has a duty to protect individuals against other individuals who might infringe their rights, and that is called the duty to protect. In that sense, the state has a duty, usually through legislation or through other kinds of policies, to provide protection for employees in a workplace, even against private employers. In the European Court of Human Rights, that is generally articulated in the form of positive duties on the state such as Article 8, which is about the right to respect for private and family life. The court will say that the state must not itself intervene in your private and family life, and that it must take action to prevent others from doing so, including employers. It has specifically talked about employers who could intervene in individuals’ private lives.

There was a case quite recently in the European Court of Human Rights against Greece where a worker was dismissed for being HIV positive. He was employed by a private employer. The action is against the state; it is against Greece. His complaint was not at all about the fact that the state itself infringed his right to respect for his private life—in this case, his HIV status—but that it failed to protect him from a private employer, and that was a breach of its positive duties under Article 8. The same can be said for other parts of the European convention.

In domestic law, that means that the state has a duty to provide legislation—as we know, the Employment Rights Act, the discrimination statutes, et cetera—and then under the Human Rights Act the courts and tribunals are required to interpret that statute so far as possible to protect individual rights, so that if a worker brings a claim against a private employer under those statutes the court has to interpret the statute so that it would protect their private life. In the case of being dismissed for HIV status, which is not protected at the moment under the Equality Act, unless it is a disability, the person could bring a claim to say that the statute must be read as far as possible to protect their right to privacy. That is how it works in a so-called horizontal way. It is only when you bring the claim against an employer that the statute must be interpreted that way so far as possible.

Baroness Kennedy of The Shaws: We do not want duplication, but if any of you have something to add, that would be really helpful.

Elaine Banton: A public employee has greater access to human rights being enforced directly because they are employed by public bodies that exercise public functions or hybrid bodies that also exercise public functions. There is a direct effect. They could rely directly on the human rights point, and the convention would have direct application.

With a private employee, as Sandy said, it has to be read in conjunction. You are looking to rely on the more domestic type of employment legislation—Employment Rights Act and Equality Act—and dovetailing that with the relevant Human Rights Act article, 8, 9 or 10, whichever one you are relying on, to buttress those domestic rights. You would be relying on those together as a private employee—you are employed by a private employer—whereas the public employee could directly rely on those rights. If you are employed by a council, you could go to the High Court to enforce it, as has been the case.

Dr Philippa Collins: Sandy gave a really helpful general explanation of the idea of a positive obligation, what that is, and how we then cross the boundary from vertical to horizontal. When I was writing the book that Joanna so kindly mentioned—

Baroness Kennedy of The Shaws: I thought the title was terrific.

Dr Philippa Collins: Thank you. I took a day off when I thought of that.

Baroness Kennedy of The Shaws: You deserved it.

Dr Philippa Collins: I spent a chapter setting out what the European Court of Human Rights actually expects of us as member states in the area of protecting human rights at work, and highlighted three things that I will set out super-briefly, and if we need further clarification we can do that another time.

The first thing that all member states are obliged to do in setting up an effective framework to protect human rights is to make sure that, where you have a right such as unfair dismissal law, a domestic piece of legislation or a common-law framework perhaps, the thing that is playing the role of protecting human rights at work is available universally to all people. Human rights are universal entitlements, so the European Court of Human Rights expects us to give that protection very broadly.

If you are not making your protection available to everybody, you need to justify that because a lot of the rights that we are talking about are qualified rights. There is an opportunity for states to justify: “I don’t protect this group of people because they have alternative protections, so they don’t also need the protection of employment rights”. That is a really important one, and it is a real challenge. I think we will unpack some aspects of why that is a challenge for us as a jurisdiction.

In court, when somebody has raised a human rights issue—their dismissal infringes on their private life perhaps—the court, when it is making that decision, must take into account the factors that the European Court of Human Rights thinks are relevant and follow a similar process. It has to do, basically, a proportionality exercise in its consideration to make sure that the infringement on the individual is not disproportionate and is not more than was necessary. That is really important, and it poses a challenge for us in several areas.

Finally, there is a positive obligation to make sure that there is a framework that offers an effective remedy, which is a general obligation that goes across all areas of human rights and is under Article 13 of the ECHR. That is also important in the human rights at work context. As a member state, we are obliged to provide that effective remedy to individuals who have suffered an infringement.

Baroness Kennedy of The Shaws: It is inherent in some of the things that all of you have said. Because some employers just do not think it has anything to do with them—where do human rights figure for them—what would you say is the justification for applying convention rights in the workplace? Your title, Putting Human Rights to Work, is precisely it. How would you justify it to the indignant employer who says, “Enough already”?

Dr Philippa Collins: Yes: “I have enough obligations. Why do I need more?” That is definitely a fair comment, and they have a lot that they need to bear in mind. I would go about that justification in a couple of different ways, to suit whatever employer it seems to relate to. There is a fairly straightforward analysis where we can see from case law and anecdotes and reports from different workplaces that there is a risk to human rights in the workplace, and that these powers and capacities, the big imbalance of power that we have, generate a risk to those rights. If, as a jurisdiction, we want our human rights to be fully protected, they need to be protected in all the different spaces in our lives and all the different important spaces where they are put at risk.

One argument is that we have a significant risk. As a group and as a society, we do not want that risk to come to fruition. Therefore, human rights must be applicable in the unusual horizontal setting that we have not seen so prominently before. You can also look at it on a much more academic or abstract level, where you think about how the risk has come about. There is the imbalance of bargaining power, the power to issue a set of terms and a rulebook, all backed up with disciplinary sanctions, and that in itself can generate a pretty significant risk to your human rights. Then you have the extra dimension that the employee or worker is subordinated to the employer when they are in the workspace, and often beyond it; you are not entirely free of your employer just because you step outside the workplace.

Baroness Kennedy of The Shaws: Emails that are looked at in the evening.

Dr Philippa Collins: Exactly.

Baroness Kennedy of The Shaws: Professor Fredman, you described the way in which work has changed. There is now flexible working, zero-hours contracts and all manner of flexibility. The world of work has changed significantly. Has that meant that the role for human rights to fill some gaps becomes more pressing?

Professor Sandra Fredman: Yes, absolutely. That is exactly where I was going to come in. In a sense, as a society, we have committed to the fact that employees have rights through the statutory framework, but more and more workers are no longer within the purview of that rights framework because they could not be said strictly to be under a contract of employment, or even the broader understanding of contracts for personal services, et cetera. In those gaps, workers are extremely vulnerable. Their work is very precarious. The power of the employer is very great.

It is important for everyone in society to know that there is a floor below which you cannot fall. First, in instrumental terms, you could get a race to the bottom. If some employers can undercut other employers by reducing the terms and conditions of work, the terms of competition become unfair and everybody starts competing to lower the decent work threshold even more. Secondly, from an intrinsic perspective, everyone has these rights, and everyone should be able to enjoy them. Whether or not they are classified as the kind of employment that falls within the statutory framework, they should still have those rights.

We know, and we will talk about it shortly, I imagine, that it is quite easy for an employer to reconfigure an employment relationship and to put all the right things into the contract to make it appear as if the worker is not an employee and therefore does not have the rights. Many of the issues that arise are whether the person is an employee and therefore eligible for the rights or not, whereas if there was a floor where everyone was entitled to the rights, as Philippa said, we could be sure that there was a floor for everyone appropriately designed.

I have been working a lot with what we might call gig workers or platform workers, and I have seen many of their contracts and many of the very difficult conditions in which they work, and that just is not right. It is not good for anyone for some members of society to be exploited. It can pull down other workers who are already protected by rights because it is very easy to contract out, make the work flexible, and reconfigure the relationship. It is not good for the workers themselves and their families, or for society as a whole, which as decades of experience have shown needs the underpinning of everybody’s rights, whatever their employment classification.

Baroness Kennedy of The Shaws: Elaine, I have left you to the last because you are the practitioner here. You get your experience directly from doing work for individuals in courts. Is there anything you would like to add to what has been said?

Elaine Banton: The value and the importance of human rights in the workplace cannot be understated. The point about the race to the bottom is crucial. There is a real positive for employers to embrace those rights because we know that businesses that have good recognition of human rights are more effective and more productive. It will exponentially increase their balance sheet. They will retain and attract the most talented individuals. There is a good news aspect to it. It is not just a one-way thing; there is something for the employer too. It is fundamental that individuals have their rights protected, because employment is one of those areas intrinsically linked to identity, respect and dignity, so they must be upheld, but it is a two-way street, and employers need to get on board and see how it can really strengthen their businesses.

We see that when we look at the statistics. They say that if we could stamp out discrimination it would add £24 billion to the economy. If you were to extrapolate that to human rights as well, I am sure it would add a lot to the economy in productivity, innovation and retention of talent in the workplace.

Q3 Lord Alton of Liverpool: Thank you to our witnesses. You have jumped ahead towards the question I want to ask you, if I may, about the difference in British legislation between an employee and a worker. Does that make a difference? Similarly, does the European Convention on Human Rights, and other international conventions and things that we are signed up to, make that same distinction? Does it have any real impact therefore on the protections that you, Dr Collins, Ms Banton and Professor Fredman, have outlined to us this afternoon?

Professor Sandra Fredman: As I said, in the 1970s when the employment statutes were set up, there seemed to be a clear divide between people who were under the employment contract and people who were in business on their own account. Employers should not be thought to have responsibility for workers who are in business on their own account, such as the plumber you get into your home to do the work.

As we have been saying, as the workforce has changed, more and more people are moving into a kind of grey area where they are not in business on their own account, although they are called independent contractors. So a new category was brought into both the employment legislation and the trade union collective legislation, which said that there was an intermediate class of worker providing work under a contract for personal services, but the other party was neither a client nor a customer. If you are a plumber, you might be providing work to a client, but if you are a plumber employed in some large organisation and you are so-called self-employed and really the business is telling you what to do and where to go, although you are providing personal services it is not your client or your customer in that sense. With that intermediate category, it was at the time quite foresighted to think that we could have another category of workers. The importance of it is that there is now a hierarchy of rights under the employment statutes.

Workers who can still be considered to be under a contract of employment—under the control of the employer and in regular formal work—have the whole panoply of rights. That includes unfair dismissal and the right not to be made redundant, although there is a two-year eligibility criterion now, so it is not as strong as it could be, and some of the shared parental leave, maternity and paternity leave; whereas what we now call limb (b) workers, who are the workers who provide personal services but not for a client or customer, have the right to the national minimum wage, the right to maximum working hours, which would include paid holidays, and rights, since quite recent amendments, to itemised particulars of their employment arrangement and whistleblowers’ rights.

The difficulty is that it is easier described than actually classified. We have had a lot of skirmishes on the borderlines, particularly on the concept of what it is to provide a personal service. If I am allowed to get someone else to do the work for me, does that mean I am actually kind of an employer myself? Am I an independent contractor? Quite often, it is easy to put a clause into the contract to say that if you cannot do it you can get someone else to do it, but in practice you never do or you cannot. There are a lot of grey areas that have caused quite a lot of litigation. The courts now have a concept of what is called a sham contract, which makes it look as though you are in business on your own account and not a limb (b) worker, but actually in practice you are. We can perhaps talk more about that.

Perhaps I could very quickly talk about the difference under the European convention. Under the European convention, as Philippa said earlier, everyone has the right, so you would think that there would not really be complex distinctions that do not necessarily reflect the substance of who should have rights. It can become very technical and divorced from the question of whether I am a rights-bearer regardless of how my employer, cleverly or not, writes my contract.

Under the European convention, everyone has the right to freedom of association and the right to freedom of speech, but some of the cases under the European convention—I imagine Philippa and Elaine can say more about this—have said that what we should do is apply a concept of worker that comes from the ILO, the International Labour Organization, which basically says that, first, there is always a presumption that you are a worker, so an employer would have to justify saying that you are not; secondly, we should always look at the facts and not at the written document; and, thirdly, there should be a whole lot of indices where we can decide whether a person is a worker or is not.

Mostly, the court has said that the clergy, district judges and even foster carers, who are governed by law rather than contract, have been said to be workers within the convention, whereas they possibly would not be limb (b) workers under the statute. It is a wider concept, but it is still a little bit fluid, and it has not necessarily gone all the way to saying that everyone has this right. There is a case right now before the Supreme Court that will perhaps say more about that.

Chair: What is the name of that case?

Professor Sandra Fredman: The Deliveroo case.

Chair: Yes, of course.

Professor Sandra Fredman: I will not say anything about the judgment, but it is about whether Deliveroo workers could be said to be workers for the purpose of freedom of association under Article 11, because they wanted to form a trade union.

Chair: We shall be watching out for the judgment.

Professor Sandra Fredman: The hearing was at the end of April, so the judgment will come out very soon. It is not called Deliveroo. It is the Independent Workers Union of Great Britain because they were the ones who wanted to form the trade union.

Chair: We should watch out for the judgment in that case. We have very strict sub judice rules in Parliament that we cannot discuss these things, but I do not think there is any harm in me asking you when the judgment is coming out. Our fantastic team will watch out for it.

Professor Sandra Fredman: Yes, do watch out for it. It is going to come out pretty soon, I imagine.

Lord Henley: I have a quick question of clarification because I am a bit confused. Does it help—I am thinking back to my days 30 years ago as a Minister in the old Department of Social Security—if one looks at the distinction in national insurance contributions between class 1 and class 2 as to whether you are employed or self-employed? It was not a matter for the employer. It was a question of fact as to whether you genuinely were working as a worker or an employee for that person and your relationship with them, or whether you were self-employed. Does that make it simpler for me to understand if I put it in those terms?

Professor Sandra Fredman: Yes, possibly, but one of the difficulties is that the same term was used in different contexts—tax, social security— vicarious liability; for example, if a worker has an accident or is negligent, the same concept is also applied. In all those different contexts, some of the cases are read across, but sometimes it does not work so well to read across a vicarious liability case to a social security case to a tax case. Actually, the employment cases have been developing along their own lines. I am not an expert in social security—

Lord Henley: I am 30 years out of date now.

Professor Sandra Fredman: I do not think there is a limb (b) equivalent, which there is under the employment statutes, so this has grown up. The bottom line is that the courts have always said, and even more now are saying, that you should look at the factual situation. It is very easy to document things in one way in order particularly to avoid national insurance contributions as well or to avoid vicarious liability as well, but the reality of what it is that the worker actually does, whether the worker gets a substitute if they cannot work, or whether they really provide the personal service, is how the courts are looking at it, and I think that is a positive development.

Dr Philippa Collins: To add to what Sandy said, the last few years, since I wrote my PhD, saw a real shift in courts being really keen not just to read the contract and say, “Oh, well, your employer has written this contract, and that looks like self-employment, so we’ll put you in that box”. They have been really keen to engage with the facts, to look at why we have this piece of legislation, what the purpose of it is, who needs protection, and then go from there—the idea of a purposive approach.

Lord Henley: In other words, exactly as we always felt with national insurance contributions, it was not for the employer to decide whether the individual was employed or self-employed; it was a question of facts as to how his or her employment was or was not working.

Dr Philippa Collins: Exactly.

Q4 Chair: Following on from that question, Philippa, I noticed that in your book, Putting Human Rights to Work, you expressed the view that the exclusion of workers such as agency workers from vindicating their rights against their employer following an infringement is contrary to European Convention on Human Rights universality, and you have talked about that already.

One of the witnesses who sent us written evidence, Dr Joe Atkinson, who I think is a lecturer in labour law at the University of Sheffield, suggested that in order better to protect human rights at work a “presumption of employment status should be introduced by legislation, applicable in all cases where employment statutes protect a convention right. This presumption should be rebuttable only where a tribunal or court find that the failure to protect the claimant’s convention rights can be justified as proportionate”. What do you think about that? I will ask the others as well.

Dr Philippa Collins: I know Joe well. We worked together, so it is great to hear that you have heard some of his evidence. He has written a really excellent piece explaining that in more detail. It is similar to another aspect of my book that we will talk about later, where I put forward some proposals. It is exactly that idea of presuming. Because employees have such an uphill battle when they come to court not just to prove that there has been a wrong done against them but to prove that they are in the right camp for the particular right as well, it is almost a two-stage battle to get their rights vindicated.

It has been quite a long-standing idea that we should reverse that battle and say that the employer has all the power and all the evidence, so it should be on the employer to disprove the idea that you are an employee as our starting assumption. It is the idea of reversing that initial stage. It is a really good suggestion. It could be quite effective. It is quite a small change, but it could reap significant rewards.

The tricky issue then becomes: when is it justified to be outside the protection? For me, that is really only when you are an arm’s-length, fully independent business with its own bargaining power that can walk away from the bargaining table if it is not receiving the right price or terms and conditions or whatever it might be. Those are the people where it is justified to not offer them the protections that we are discussing today. It would be a very small pool of people who would not be protected under these kinds of mechanisms. It is absolutely a great idea.

Chair: Elaine, you act for both employers and employees, so you will have a feel for whether introducing that sort of presumption of employment status would be too great an imposition on employers. Can you tackle the idea? I am sure that some would argue that it is not fair on the employer to put that presumption on them and it is too heavy a burden. What would you say in response to that?

Elaine Banton: It is a very interesting point. I certainly agree about the purposive approach, because in the last 10 or 15 years I have seen much more of a sea change towards finding employment status rather than not. The reversal, a presumption of employment status, sits well with the general purposive approach that has been adopted. When you really examine how that would be done, I do not believe that it would add a substantial burden for most employers. One could perhaps say that depending on the size of the employer the burden might be imposed on slightly medium and larger-scale employers first. They would certainly have the resources. They would have all the HR resources at their fingertips to demonstrate whether someone was an employee.

Chair: We already have areas in labour law, or in the law generally, I think, where very small businesses do not have the same obligations imposed on them, but they have to be really a small business, do they not?

Elaine Banton: Yes, that is right. Quite often, obligations will be directed at medium and large-scale employers, and not subjected to smaller-scale employers. That is for the very good reason of their resources and their ability to service their employees. That distinction could be made, and that would ameliorate any immediate disadvantage to a change being brought into place.

Chair: I think you are saying that in the long term there would not necessarily be a disadvantage; you might want to bring it in initially for bigger and medium-sized employers, and bring it in more gradually for the smaller employer.

Elaine Banton: Yes, you could look at doing it incrementally to share the burden, to spread the burden.

Chair: Thank you. Professor Fredman, would you like to add anything on the question of having a presumption of employment status?

Professor Sandra Fredman: Yes, perhaps two things. Because the ILO recommendation that I mentioned says that there should be a presumption in favour of workers’ status and the European Court of Human Rights has already accepted that, in a sense we are already quite far down the line towards that position. There is quite good comparative experience from other jurisdictions.

I have worked a lot in South Africa, and under South African labour laws there is a presumption exactly like this; a worker is covered by the employment statutes, and there are some factors, and then it is up to the employer to displace that presumption. In California, a very interesting proposition was passed with a very similar idea. It was particularly aimed at gig economy workers such as Uber drivers where there was a very strong presumption in favour of workers’ status. There is really good experience of that too. One of the big advantages is that at the moment we have a lot of litigation, what I might call threshold skirmishes, about what the facts are, as we said, how they relate to the written contract, and whether workers are in or out.

Many of the Uber and Deliveroo cases, which have been going on all over the world, are just about whether you get through the door, but they do not say anything about the substance of whether the individual should have the rights and in what circumstances, and which rights they should have. If there were, as the European convention seems to say, rights that apply to everyone, further down the line you could ask whether the employer is justified in limiting that right and for what reasons. We could then have the real debate, which is about the substance of the issue. These are almost all qualified rights, as we have said.

Just because you are through the door does not mean that all the rights always apply to you in an unadulterated way. You can say that there is a prima facie right, and then the employer would need to say, “This doesn’t work in my workplace or in my situation”. Personally, I think that would be a better way than dividing between small employers and large employers, because we have already seen that that threshold is also contested. An employer can say, “Well, actually, I only have six employees because all the others are contracted out”, or, “Some of the others are agency workers”, and then all the court proceedings—I am sure you have had experience of this—are all about who we count and how. The fewer technical disputes that can happen at the doorway, the more we can talk about the substance of the rights.

Dr Philippa Collins: As a final note, there has been a Private Member’s Bill recently—I was looking to see whether I mentioned it so that I could find it quickly—that tried to unify the three-part workforce. It tried to make workers and employees the same broad category, and it would have introduced a presumption of employment. That might be something to look at, as there has been an attempt fairly recently, perhaps in the last Parliament.

Chair: We shall chase that up. Thank you very much.

Q5 Baroness Lawrence of Clarendon: Good afternoon to everyone, and thank you all for being here. My question is aimed at Elaine, if you do not mind. How would a person challenge what they think is a breach of their human rights at work? What barriers, if any, exist for people seeking to claim that their human rights have been breached at work, including in the employment tribunal?

Elaine Banton: The first part of that is very interesting, because in the workplace, as an employee, the first step might be to raise a grievance internally. You might be raising a grievance about a decision that has been made against you. Maybe you were not promoted. Maybe you raised a grievance, and then you were subject to victimisation or detriment, if you had blown the whistle, for example. You might do that internally. You would not, generally speaking, raise human rights because an employer internally would not really take that on board. Even if it was a public service employer, they are unlikely to take it on board.

Most employees who will challenge a breach of their human rights are looking at going externally and taking that to the tribunals or courts. The mainstay would be, first, the employment tribunal, and depending on your issue—if you were dismissed, if you were disciplined, or if you were subject to discrimination in some way or victimised—you could be joining that up. For example, if it was religious discrimination, you could be marrying that with expression or belief and taking that to an employment tribunal. Typically, you would raise it internally first and then, if that did not resolve it, look to go externally to an employment tribunal.

The barriers are manifold. The first problem is that there is no legal aid. There are issues with funding. How are you going to fund the claim? You are bringing a claim against an employer who has resources in a way that an employee does not. The imbalance of power that we talked about earlier really kicks in once you embark on litigation. Some litigation carries with it the risk for an employee that if they were unsuccessful in an employment tribunal they could have a costs order made against them. That is a threat that potentially hangs over employees and tends sometimes to operate to limit the enforcement of those rights. There are a number of barriers in terms of the cost.

As we talked about before, are you a worker or are you an employee? How long have you worked there? Even if you are an employee, if you have not worked there for two years, you would not have a stand-alone right to unfair dismissal; you would have to link it to a statutory right, whistleblowing or discrimination. That is another barrier for employees. We know that certain categories of employees, if we look at intersectionality, are less likely to have two years’ employment. Disabled employees are less likely to have two years. That is another barrier. You sometimes find that there are patterns of intersectionality where different groups are affected disproportionately, and that acts as a double discriminatory and chilling effect on their rights. There are a number of barriers, in my experience, that operate to prevent individuals enforcing the rights that they actually have.

From a practitioner’s point of view, when it comes to human rights, they tend to be more engaged with at the higher courts than at first instance. Typically, you find either that it is raised in the employment tribunal but it is not really engaged with or has not landed well, or it is just not raised at all, but when there is an appeal it may get raised. It gets engaged with more the higher up in the courts that you go, so that is another barrier for employees.

Baroness Lawrence of Clarendon: It sounds to me as if the barriers are manifold, because as a worker unless you have all those different elements that add to your complaint or disagreement with your employer, basically, you are more or less left out in the cold, as an individual. If you say that you felt that your human rights were impinged on because of your headdress or whatever, it seems that you are quite limited. You either have to suck up and accept what is happening to you or leave that employment.

Elaine Banton: There is a very long, arduous battle, potentially, as well as just going to the employment tribunal. The backlog is 50,000 cases. Typically, the average case takes 49 weeks to get heard, and that is not necessarily the hearing; it could be just the first or second hearing. There are many barriers that employees face. It is actually quite stark when you add them all together. It is multifactorial, and it operates as a chilling effect on the operation of the rights.

Baroness Lawrence of Clarendon: Does anyone else want to add anything?

Dr Philippa Collins: Perhaps we underestimate that impact of the lack of legal aid. The individual is going into a completely alien area of life. They may not have any friends who are lawyers. They may end up relying on Citizens Advice to get help with that really basic, “This is what has happened to me. Can you help classify what kind of area of employment law I can rely on? Do I have anything that I can rely on to go to tribunal?” They might be looking at GOV.UK guides about employment law and trying to piece it together for themselves. It is all really arduous work, and it takes a real toll.

Sandy has written extensively, in discrimination law specifically, on the toll it takes on the individual to run this kind of litigation. Then you add the whole technical area that you can have discrimination or you can have unfair dismissal, and then you have to go to an employment judge and make an argument based on the Human Rights Act. That is a whole other thing that they have to become familiar with, which, if we are honest, is quite a niche area. It is not something that you can access by googling and quickly get a “How to” guide on combining employment law and human rights law before an employment tribunal. It is really technical, complicated stuff.

When you read about unfair dismissal cases, you see a big gap about the fact that human rights are not being discussed and raised. It is down to the fact that the litigants do not have enough support to be able to do that for themselves. It is a resourcing question, essentially, that we are not supporting these litigants with the legal advice they need to effectively enforce these rights in our tribunal system, which, added to all the other things that Elaine rightly pointed out, is a significant barrier.

Baroness Lawrence of Clarendon: Professor, do you want to add anything?

Professor Sandra Fredman: I totally agree that there is a real issue. It can also be formulated in human rights terms because it is about a right of access to justice. The right of access to justice is also a human right. There has been some litigation about the right to access to justice itself. We know that, when the Government increased fees for tribunals, the number of discrimination cases fell by 75%, I think, in one year, which shows how important it is to facilitate access to justice. That was a very important case where the courts recognised that there was an access to justice issue that needed to be kept in mind.

Chair: It was the Supreme Court that ruled on that, was it not?

Professor Sandra Fredman: That is right.

Chair: What was the name of the case again?

Professor Sandra Fredman: UNISON.

Chair: The UNISON case, yes.

Professor Sandra Fredman: Yes, it was a very long process to get there. The other side of it is that even bringing the claim on access to justice itself requires—

Chair: Bear with me two seconds. [Interruption.] Sorry, we can ignore that. Please continue, Professor. Forgive me for my frantic consultations.

Professor Sandra Fredman: The reason it was called UNISON—

Chair: Sorry, let me go back to where we were. Doreen asked if you had anything to add, and you were talking about how this is an access to justice issue and reminding us about the UNISON case in the Supreme Court where there was an issue about access to justice because fees had been raised. Can you talk us through in brief terms, Professor Fredman, what that case was about and what the Supreme Court found?

Professor Sandra Fredman: Yes, of course. Originally, the idea of tribunals, which were brought in in the 1970s when the first employment statutes were brought in, was that they would be cheap and accessible and, in fact, that there would not be lawyers. The reason why costs were not awarded was that the idea would be that you could walk off the streets and walk into a tribunal. They were set up as a very cheap, simple system. Over the years, because the law became so much more complicated, people began getting more and more lawyers involved, and that made it more and more expensive. The one thing that was maintained was that there were no fees for tribunals, whereas there are fees for the county court and so on.

I cannot remember the exact date, but sometime around 2016 the Government introduced proportionately quite high fees, given the fact that compensation levels are extremely low, your success rates are quite low, and you had to pay a separate fee for putting in an application and then a separate hearing fee. That had such a great effect that the figures showed that particularly discrimination claims, because those were the ones that had been charted, and unfair dismissal claims, fell by 75% in one year because there was such a deterrent effect from the extra cost to complainants. The important thing about that case was that it was brought by a union, so the union could absorb some of the costs.

In other countries, you might have public interest litigators. Some countries even have special state-funded advocates who can bring a collective case, and the collective case can help many different claimants. Potentially, the only reason why this case could go all the way up to the Supreme Court, which was itself a long process and required a lot of financial contribution, was that it was taken by UNISON on behalf of its members. Eventually, the court held, first, that there was a breach of access to justice and, secondly, that it was indirectly discriminatory because the worst burden was particularly on sex discrimination cases. The result was that the Government had to pay back quite a large amount. I do not know if you know the figures off the top of your head, Elaine. Over some period, they have had to pay back the fees.

The other thing about that case is that a huge amount of data were collected, and I found it very striking that if you eventually get to the end of the process, not only is the compensation level very low but very often it is not paid. Many workers had to go back to court, or could never afford even to go back to court, to get their compensation paid. That case really opened up how problematic the system is. The original idea of having tribunals that are easily accessible, have quite simple law to enforce, and have an employer representative, an employee representative and a legally qualified chair was a good model, but we have drifted far from it, sadly.

Chair: That is helpful.

Lord Dholakia: Are members of the tribunal trained about these particular issues? Are you invited from time to time to make contributions at those sorts of training courses?

Elaine Banton: They have training, absolutely. They have quite rigorous, regular training on matters that involve access to justice, discrimination and equal treatment. There is the Equal Treatment Bench Book, and it is a guiding principle that they have to proliferate justice. They have an understanding of the issues, but they interpret the law. They have a duty when there is a litigant in person, as it is a tribunal, to adopt a more inquisitorial fashion and to assist them to have access to justice and equality of arms. That is the case.

Typically, if a respondent is not represented and the claimant is a litigant in person, the employment tribunal should oversee and ensure that it ameliorates as much as possible any imbalance of power. Does that sometimes not work as well as we would like? Possibly. There will be times when perhaps somebody slips through the net and they do not really follow everything that is going on, but there certainly is training that addresses that, and it is enshrined in the Equal Treatment Bench Book.

Q6 Dr Caroline Johnson: I want to ask about union representation. I should say that I once used my union to take an employer to employment tribunal in a case that I won. That was all to some extent organised and paid for by the union subs that I had been paying. What proportion of people who attend an employment tribunal would you expect to be independently represented, represented by themselves or represented by a union?

Elaine Banton: Anecdotally, trade union representation has reduced for individual claims, and it is more strategically used. If an individual claim has a strategic point, they may get represented. If it is more of a collective claim that has a big impact, it will obviously be represented. In terms of trade unions, internally, while you are at work you will be represented, but as an individual you are less likely to be represented all the way through your tribunal claim. The volume of claims has gone up, and unions tend to be quite strategic in how they allocate those funds.

Individuals can draw from insurance if they have it. Quite a lot of employment tribunal claims are funded by litigants in person and by the insurance policies of claimants and respondents. Typically, if you have a home contents insurance policy, you may have legal expenses insurance, and you can avail yourself of that. That is another way that claimants are sometimes funded. It is not ideal.

Dr Caroline Johnson: Do you have any idea of what proportions of people do not have insurance, union cover or cover that they can draw on?

Elaine Banton: I do not know the figures, but litigants in person in the tribunal are still quite common. It was ostensibly set up for that. You still have quite a lot of litigants in person, and they may have a McKenzie friend with them. Sometimes they have someone acting pro bono. That is not uncommon in the employment tribunal. You still find claimants in simple cases and in complex cases acting for themselves.

Chair: I have come across the home insurance issue. The difficulty is that, unless it has changed since I was in practice as a lawyer, quite often there is a ceiling on home insurance at £25,000 or £50,000, so it will only take you so far. Is that still the position?

Elaine Banton: Yes, typically £50,000 is a very common amount. It can be higher. Yes, that is right.

Chair: Looking back to the origin of employment tribunals, they came in as industrial tribunals in the 1970s. At that stage, there was a far higher percentage of the workforce who were unionised. Is that not correct? There has been quite a drastic change in the number of people who are unionised in the United Kingdom between the 1970s and now 50 years on.

Elaine Banton: Yes.

Chair: At the time that industrial tribunals were introduced, they were supposed to provide “an easily accessible, speedy, informal and inexpensive procedure”. It sounds to me from what the three of you are saying that that is no longer the case.

Elaine Banton: You will find cases with very senior counsel and Silks against each other, teams of barristers, and even litigants in person against Silks. It was not envisaged in that way. Of course, there are very long backlogs, which, even if you have insurance, will eat away at your funding because you will be waiting a year or a year and a half to get to your case. That elongates it and makes it more expensive. All those factors such as speed and accessibility have changed exponentially.

Baroness Kennedy of The Shaws: You spoke of the shocking number of the backlog—50,000. Of course, we know that the criminal justice system has 150,000. The asylum system has many hundreds of thousands. The whole legal system seems to be deeply beleaguered. Was that 50,000 backlog in existence before Covid and then exacerbated by Covid, or is it only Covid?

Elaine Banton: No, it was already pretty high, and it was exacerbated by Covid. It remains a big problem. During the time of Covid, the employment tribunal relatively quickly got itself online. Online hearings were used specifically to try to reduce the backlog, but there are so many claims coming that it is pretty stagnant.

Baroness Kennedy of The Shaws: Why had it got so high even before Covid?

Elaine Banton: There are a number of factors. Resourcing issues across the whole justice system are part and parcel of that.

Baroness Kennedy of The Shaws: Austerity cuts have really bitten deep.

Elaine Banton: Absolutely. I know that there have been more judges recruited. There are recruitment drives. With the use of online hearings, you can have more hearings going on at the same time. Some of the buildings are very old and unloved, so they are not necessarily all fit for purpose. Then again, online hearings are not a panacea for everything. If you have a multiday discrimination claim, which I typically do—they are three or four weeks long—doing that online is very difficult indeed. I query whether that is access to justice at all. It is swings and roundabouts. It is definitely not a panacea.

Chair: It is perhaps even more difficult for the litigant in person to cope with representing him or herself if they are online at home on their own.

Elaine Banton: Yes, absolutely. On the flip-side, they may prefer not to be physically in the room with the victimiser or the perpetrator, so there is that too in some cases.

Q7 Chair: Before we move on from this broad access to justice issue, can I ask about the time limits? They are very tight, are they not? Can you talk us through the time limits from bringing a claim to an employment tribunal and comment on whether you think that those time limits raise any issues for access to justice? I will start with Elaine, as you are the practitioner, and then bring in our two academics.

Elaine Banton: Typically, it is three months from the date of the discriminatory act, dismissal, or the complaint that you are making. For some claims of equal pay, it is six months. It is still very short, although equal pay claims can be brought to the county court. That is another point. We know we can do that, and there is a longer time limit if you do that. In the employment tribunal, it is three months. You have to go to ACAS for early conciliation, and that will extend that three months by another month, roughly.

In a discrimination claim or a whistleblowing detriment claim, in the real world individuals do not immediately go to the tribunal at the drop of a hat. They have to rely on arguing that there is a continuing act. That extends time, and, again, you get into complicated legal arguments that are not so readily available at the fingertips of litigants in person. That is another factor. Those time limits are an issue. There is a real pressure, a groundswell, that for particular cases they should be extended; for example, if you have just had a baby, a three-month time limit is very short. That is certainly one area where it is quite clear that it does not seem to fit so well. The time limit is raised in every case, practically.

Q8 Baroness Meyer: We talked a lot about the UK. In your opinion, how does the UK compare to other European countries in protecting human rights at work? Who wants to start first?

Dr Philippa Collins: I have not done the comparative analysis, so I will step back from the question. I do not know whether Sandy has looked at that at all.

Professor Sandra Fredman: It is a very difficult question, because European countries are very different, and they have very different industrial relations histories. Germany, for example, has a long tradition of works councils. Works councils work very well in Germany, but they would not necessarily work well in a different jurisdiction. Trade unions in this country have been concerned about works councils, so it is not very easy to import them. If you were doing a comparison across the board of workers’ rights, it would be very difficult to do so.

Within the European Union, because European Union law obviously binds all the member states, there is some commonality, although not all labour rights are covered by European Union law; it is primarily discrimination rights and a few isolated collective rights. If we were comparing, we would need to know whether the UK, since it left the EU, has fallen below the minimum standards across EU countries. So far, it is still in a transition state, so that is not very easy.

Even if you look at the gender pay gap, which I follow very closely, European countries differ hugely. Some of them have a very wide gender pay gap, some of them have a very narrow one, and the UK is somewhere not on the best side and not on the worst side. If you look at it even more closely, the way they calculate the gender pay gap is a little different in different places. Especially since the UK is no longer in the EU, it does not necessarily have to compile its figures in the same way. I think it is very difficult to make that comparison.

If you look only at European Court of Human Rights judgments, you get a skewed picture, because the ones where there has been a breach get to the court. There are many cases from Turkey and Russia. Russia has now been expelled from the Council of Europe. Many of the ground-breaking cases are against Turkey, but then those standards are transferred to other countries. It is a very difficult comparison to make. What we would really need to do is a study right by right.

What about trade union rights? Certainly, if we take rights to strike, the right to strike in this country is much more restrictive than in most European countries where there has always been, as I said earlier, a positive right to strike and then justifications for limiting it, whereas in this country it has been more about immunities against civil action when striking. It is probably the one where we could compare easily to say that there is a much deeper tradition of rights to strike and collective rights in other European countries, but that probably would apply to western Europe. Eastern Europe is another picture, because lots of rights were inherited from the socialist period, which were very broad rights and quite strong in areas such as parental rights, whereas in other countries they are very different. The bottom line is that it is very hard to come up with one general answer.

Baroness Meyer: We could compare with Switzerland, but that is a small country.

Professor Sandra Fredman: Even in Switzerland, the level of trade union density, the number of workers and the type of industry might matter. Anyone who has done comparative work finds that comparative labour law is potentially the most difficult to do.

Baroness Meyer: Elaine, do you have anything to add?

Elaine Banton: No, I could not add more to what Sandy said. I would agree with that completely.

Chair: You mentioned, Professor Fredman, the fact that the United Kingdom has left the European Union may lead to a fall in standards, but it is early days at the moment. Remembering back to all the Brexit turmoil, there was a lot of debate about this in Parliament, particularly about leaving the European Charter of Fundamental Rights. I think I am right in saying that quite a lot of the gains for workers’ rights in the UK over the last 50 years came about as a result of European Union law as opposed to the convention or the Strasbourg court jurisprudence. Is that right?

Dr Philippa Collins: I defer to Sandy, but definitely it is the convention; we only had the Human Rights Act in 1998, so it has a more limited timeframe. For quite long stretches of the convention’s period of existence, we have wondered what good it is to ask, because we want dedicated labour rights that are very strongly enforceable in our respective countries. What good is the right to privacy to me while I am in my workplace? Obviously, times have changed, and we have realised much more that the convention has relevance.

Baroness Kennedy of The Shaws: Discrimination, redundancy, pregnancy rights: all those things were enhanced by the European Court of Justice.

Dr Philippa Collins: Yes, and at times it was a staunch defender even against fairly recalcitrant member states that wanted to push back against interpretations. Sex discrimination is the star European contribution, and then each member state built on that.

Chair: I think some same-sex partners’ rights in relation to workers’ pensions and benefits in kind came about. Am I right in saying that same-sex rights in the UK had to be brought in in those areas because of litigation under European Union law?

Professor Sandra Fredman: Yes, that is correct. Because the EU is more directly binding on all member states, the areas where it had legislation in the form of either the treaty or directives could be directly litigated if it was directly affected or indirectly through interpretation or even a requirement for legislation at domestic level.

As far as discrimination law is concerned, which is the major contributor, in the early years it was very much an interaction between the UK and the EU. The UK contributed quite a lot of really important ideas to the development of EU law, such as the concept of indirect discrimination. Even race discrimination legislation and disability legislation were pre-dated in the UK. In my view, it was always a very constructive dialectic relationship—a social partners dialogue, where the UK as social partners contributed very constructively even to working time directives and parental leave directives. It was not just an imposition of the EU on the UK.

Baroness Kennedy of The Shaws: It was not just a receiver; it was actually very much engaged in the creation of that law, and, in fact, played quite a leading role.

Professor Sandra Fredman: That is right. Many of us were, as I am sure you were, involved in that process at the time. There was social dialogue. It was about an organic creation of rights, as much bottom-up as top-down. It is slightly misleading to think that these were impositions or foreign imports, because they grew from the interaction between some really positive norms coming from the UK and positive norms coming from the EU. Some things, as you said, were initiated by the EU, most importantly protection against discrimination on grounds of sexual orientation, age and religion, which had always, in Britain at least, been on the margins, although in Northern Ireland it was not. We can find places where the UK was ahead and places where the EU was ahead, and how it all developed. We do not know yet. We are still, as I said, in the transition, but we wait to see how much divergence there will be.

Chair: That is really interesting. Thank you.

Q9 Lord Dholakia: I want to seek your views individually. In your view, what improvements at the moment should be made to how human rights are currently protected at work?

Dr Philippa Collins: It is quite a big question. There are some areas where we are doing okay. It is quite easy to be really critical. Sandy mentioned that the right to strike is definitely a problem, but there are other aspects of how we protect trade unionism at work, which I would say are quite widely available. They are available to workers and they seem to be quite effective. We do not have many complaints about it, so, hopefully, that is a sign that the risk in the trade union sphere is perhaps being mitigated by these protections. Obviously there are problems particularly around strike and access to collective bargaining, which is what a lot of the current litigation is about—Deliveroo and so forth.

Similarly, with discrimination law, the Equality Act 2010 was quite ahead of its time and introduced some interesting provisions, and, again subject to the access to justice problem, is a piece of legislation that seems to do its job really well, to me at least. You could say similar things about whistleblowing, which is an aspect of freedom of association. There are undoubtedly successes. Perhaps when you are an academic, it is easy to neglect that there are those successes on our books. That is not to say that outside that area we do not have some significant problems. You can see that those aspects are pockets of quite strong protection and they exist, and they are quite a nice model to look at.

Beyond that, if you have been monitored at work and your employer has gone through and read all your emails and found a reason to dismiss you in those emails, that is a pretty egregious infringement on your right to privacy. That is an infringement that the European Court of Human Rights has recognised. How would you go about enforcing that right in this country? The likely thing that you would do, because you have been dismissed, would be to look at unfair dismissal protection, but there are myriad problems once we open that particular can of worms. It is only available to employees, and only the really privileged class. They have to satisfy quite high hurdles. They have to have two years of employment. If you are new and this happens to you, you have basically no remedy.

When we look at how the tribunal engages with the dismissal itself, tribunals tend to be quite hands-off. They give quite a big margin of manoeuvre to the employer when they are testing its fairness. We have not really experimented with whether reading emails is inherently unfair. How do we respect privacy in that context? We do not have case law on that yet. Actually, the judges so far have been really dismissive of that kind of argument as well. They have said, “Why are you talking to me about privacy? It’s a work computer. It’s a work email account. They can do whatever they like”, which is definitely the dominant narrative that you get from judges at the moment. It is similar with Facebook, Twitter and all the other new communication mechanisms. You might get no real recognition from your judge about the fact that you have had a human rights infringement on you.

Even if you are successful, which is very unlikely, as Sandy said earlier, I would say the most awarded figure for unfair dismissal is somewhere in the region of £5,000 to £9,000. You have lost your job and you have gone through perhaps a year of waiting for your day to seek justice for a human rights infringement, and then the judge is only able to give you £7,000. Imagine all the time you have spent, all the emotional energy, and all of that. You would question both the process and how we had got there. Has the human rights aspect even been engaged with properly? Possibly not. Then, once you get to the end of the journey, there is quite minimal recognition of the wrong against you. Again, I question whether that is an effective remedy such as the European court would expect of us as a jurisdiction.

It is a really mixed picture. You have some areas where we are doing really well and there might not be that many complaints. As soon as you step outside those specific zones, into any generalised protection that has not already been specifically designed, you are in a desert of protection almost for a lot of people, particularly zero-hours contractors who were mentioned and precarious people. All of those will struggle to find an effective remedy or effective justice, basically, in those circumstances.

Lord Dholakia: Elaine, you are a practitioner.

Elaine Banton: Yes, I think this is quite interesting. There is a lot of complexity around whistleblowing. They could very much simplify that and ensure that more groups are protected, because some groups are just not protected at all, and it is very complicated and you are forced to try to shoehorn yourself or argue protection at endless preliminary hearings. It is fundamentally important that workers and employees have the opportunity to blow the whistle on matters of public interest that are detrimental.

The lack of protection operates to silence them and to take away their rights. It is also driving down standards in the workplace, because it is fundamental. I see a correlation with whistleblowing and victimisation and bad employers. We need to encourage good employers, celebrate good employers and learn from good employers, but the process operates in such a way that it silences individuals. If they put their head above the parapet, they will be subject to detriments that are negative in the workplace, and that is a real problem.

I wonder if there is a system of following or monitoring systemic recidivist breachers of employment rights. Are we actually monitoring this, and are we doing enough to raise standards? We should be looking to improve matters. Are we tracking this, are we seeing patterns, and are we trying to proactively improve rights at work in that way as well? There is a lot of data, and it would be useful if it could be monitored and utilised effectively to support rights at work.

Professor Sandra Fredman: I agree with what has been said. As far as human rights go, one of the big improvements, which we have already discussed, would be to make sure that human rights at work apply to all workers in an equal way, and that we could not allow, in a sense, employers to contract themselves out of their obligations by formulating a relationship by casualising, by contracting out, or by using agency workers.

One of the most important rights that also came out of our discussion already is freedom of association and the right to belong to a trade union. The way Article 11 is written is that it is the right to belong to a trade union for the protection of your interests. Some of these cases, which being sub judice we cannot talk about, are about workers in these positions being able to organise themselves into trade unions. This is a bit like a facilitative right. As we saw before, once you have a union, the union could help represent you at a tribunal, and the union could even help resolve your problems before it gets to a tribunal and mediate. Union workers’ imbalance of power is helped by having a collective path. The right to freedom of association is extremely important and could well be much better protected.

There are other rights that are not easily protected for precarious workers. Philippa already gave some examples of privacy. Because I have worked a lot with gig economy workers, I will use Uber as an example and the extent to which workers are controlled by algorithms and extreme surveillance techniques that they have no access to at all. There is a lack of due process, in that if you get a certain number of bad reviews you can be locked out of the app without any way of knowing why and how. If those algorithms are discriminatory, it is very difficult to contest them.

The right to access to due process and not to be arbitrarily treated and the right to respect for your private life are things that need even more protection in this area of extreme precarious work, as well as freedom of speech because it is very easy to be victimised. It is easier to victimise people who are in precarious work for speaking out, particularly for their interest. A lot of the trade union cases are about people who are speaking out in order to further interests of trade unions, and then they are the ones who get locked out of the app. It is not called a dismissal; it is called a termination of your relationship. With human rights at work, we have to come back to the basic principle that they should be available to everyone, and that is where I think we need great improvement going forward.

Dr Philippa Collins: One of the problems is that when we are protecting human rights at work we have a whole range of options available to us, but we are essentially taking a square peg and trying to shove it into a round hole, because none of these things, apart from discrimination law, was designed for this purpose. None of these things was designed to give effect to our positive obligations under the convention to be universal, to have a strong sense of scrutiny, to give the enhanced remedies that you would expect to see around a human rights framework.

What we have been trying to do through using the Human Rights Act, through pushing little boundaries through litigation, in the last 10 years mostly, is make quite small adjustments, when actually what we need are quite big strokes of change to supplement and complement the labour rights that we have, with a framework of human rights protection that is dedicated and designed for that purpose, rather than trying to squeeze things through holes to get the individual the protection they need. That is not the best way to protect human rights in the workplace.

Lord Henley: In effect, that is what you mean when you argue for a Bill of Rights for workers. I am giving you a chance to give a good plug for your book.

Dr Philippa Collins: It is making the point that we have two ways forward. If I was a legislator trying to tackle this problem, I could go down what might be seen as the easy route: “We’ve got all these protections. Let’s just make changes and make adjustments so it fits my purpose”. The problem is that we have these well-established tests, ideas and interpretations. Unfair dismissal law is 50 years old. The judges know how it works, and when it is doing the job it was designed for it does it relatively well. You risk ripping up all the good stuff that we have built up over the years in order to pursue the human rights protection idea.

Instead, you could take the second option, which is, “Let’s do what we did with the discrimination law, realise that this is a really serious risk within our workplaces, and design something specific to counteract that risk”. That could be things like introducing straight at the beginning a presumption that you are within the scope of protection, that you are a worker who deserves protection of their human rights; and that there is no question but that we should assume that you get this form of protection.

When I say a Bill of Rights for workers, I mean that, just as at the moment if you are a citizen we know that you can make a judicial review claim based on human rights directly against a local authority or whoever, it would be the same idea. As a worker, I could say that my company, by dismissing me in this way or for that reason, had infringed my freedom of religion. That would be my claim. I would not be saying, “I’ve been unfairly dismissed, and I’m going to introduce these different arguments”. I would just be saying, “Here’s my human right. You’ve infringed it”, and I would go to a tribunal and make that argument.

From that starting point, your presumption, the new idea that the employer has a duty to respect the human rights of its workforce, you can then add all sorts of special parts of protection to make it as effective as it can be. You can look at the remedies again so that you do not end up with people getting a human rights infringement and then £8,000 or £5,000 as recompense. You can then put all sorts of bells and whistles on top to make sure that the really serious risk that we see, through case law and through all the evidence that you can look around for, is actually effectively counteracted, and that we have a designated mechanism.

Hopefully, you could also raise awareness. One of the main things that a new Act of Parliament or a new piece of legislation does is highlight the topic and say, “Hang on a minute. You’ve got these rights. You’re subject to these duties. Let’s think about these workplaces and maybe think about making some changes”.

Baroness Kennedy of The Shaws: From the way you describe it, it would simplify the complexities that we have got ourselves into at the moment.

Dr Philippa Collins: Yes, that is one of its biggest benefits—big raising of awareness. You leave employment law doing what it does best, which it has had 50 years of doing, and you add something new. Then you avoid the really tricky layering of different protections and a human rights argument on top of it. It is so complicated for the litigants to navigate, and it would just have a designated set of protections. There are all sorts of things that I can talk about for hours that we could add to it to make it really effective as well.

Baroness Kennedy of The Shaws: Very interesting.

Chair: Excellent. Well, thank you. It has been a really interesting session with a lot of ideas and information for us to take forward to the next stage of our inquiry. I will wrap it up for now after thanking you for a fantastic evidence session.

Oral evidence: Human rights at work