Does the European Convention on Human Rights protect workers who are unable to bring employment tribunal claims? In Smith v United Kingdom 54357/15, the European Court of Human Rights in Strasbourg considered whether a blacklisted construction worker who had no protection in ordinary UK employment law but who had later succeeded in a (settled) breach of contract case in the High Court had been deprived of an effective domestic remedy.
Dave Smith, a 46-year-old engineer, lost his initial claim for compensation from one of the construction firms involved in the blacklisting – a process where information was retained about some workers, mainly union officials, in order to identify them and prevent their being given work. As an agency worker, the employment tribunal decided, he did not have the right to claim compensation for loss of income, although there was an admission from the construction firm involved that two of its subsidiaries had "penalised" Smith for being a trade unionist. In addition, a witness from the Information Commissioner's office stated that he believed that some of the information in the files used to blacklist workers "could only be supplied by the police or the security services".
Mr Smith and a number of other workers then issued a class action in the High Court against 39 companies, which they claimed had breached their rights when they blacklisted them. Those cases, which included claims under the Human Rights Act 1998, the Data Protection Act 1998 and the tort of conspiracy, were settled before the final hearing took place. The claimants received financial compensation and accepted that this was reasonable and proportionate for the harm they had suffered.
Article 8 of the European Convention on Human Rights (ECHR) provides that "Everyone has the right to respect for his private and family life, his home and his correspondence". Article 11 states "Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests". The Human Rights Act provides that UK courts and tribunals are obliged to interpret domestic legislation, so far as possible, in a manner compatible with the ECHR.
Mr Smith issued an application at the European Court of Human Rights (ECtHR) claiming a breach of his Article 8 rights by the collection and use of his confidential data in the blacklist which was not in accordance with domestic law, could not be justified and was not necessary in a democratic society, and a breach of his Article 11 rights through the failure of UK law to protect him, as an agency worker, from inclusion on the blacklist due to his trade union activities and its failure to provide any remedy against that violation.
European Court of Human Rights decision
Both of these claims failed, on the basis that the UK had already provided Mr Smith with an adequate remedy for what had happened to him. In considering the facts of the case, the ECtHR reiterated that a favourable domestic decision or measure was not, in principle, sufficient to deprive an applicant of their status as a "victim" of a violation of an ECHR right unless the national authorities had acknowledged, either expressly or in substance, and then afforded redress for, the relevant breach. The issue of an applicant’s victim status would be linked to the question of the existence of an effective domestic remedy and the adequacy and sufficiency of redress provided by that domestic remedy.
While it did not say so expressly, it appears that the fact that Mr Smith was able to secure compensation from the settlement of the High Court claim that he accepted was "reasonable and appropriate" was significant. The fact that the employment tribunal could acknowledge what had happened to him, without being able to consider the substance of his claims, could on its own hardly be regarded as adequate or sufficient redress.
This decision may have implications beyond the construction sector, as it could lead to trade unions putting pressure on the new Government to extend the rights of agency workers. The draft Labour Party manifesto, which was leaked to the press yesterday, includes a pledge to hold a public inquiry into blacklisting, which – if it happens – could also lead to legislative changes.