Get in on the act

A quick survey of the captains of the hospitality industry reveals sound awareness of the latest piece of legislation to hit the statute book. Most are fully abreast of the Human Rights Act, which came into force on 2 October, finally bringing to Britain the rights previously covered by the European Convention on Human Rights.

But knowing what the act says is not the same as understanding how it will affect business, and uncertainty remains over what it means for hospitality.

The act has been heralded as the most significant legal development in recent history. It ends the need to go to Strasbourg to fight for basic human rights, and it covers various freedoms for private individuals: a right to a fair trial; a right to respect for private and family life, home and correspondence; a right to freedom of thought, conscience and religion; a right to freedom of expression; and a right to freedom of association and freedom from discrimination.

It is only directly enforceable against public bodies such as local authorities or the police, but this doesn't mean employers can be complacent. Private companies will also feel its impact.

Private employers: brace yourself

The focus of the act as a weapon against the state and public authorities has blinded many in the industry to the danger of it soaking into private industrial relations. Few have truly grasped its potential.

"What it means for employers isn't quite clear," says Robin Rowland, director of operations at Yo! Sushi and Yo! Below, a Japanese restaurant and bar chain. "We have to wait to see what is going to happen."

The lawyers reckon they know what is going to happen and are already warning of an avalanche of cases for discrimination and wrongful dismissal against employers.

"The act applies to local authorities and other public bodies directly, but it will have an effect on private employers," warns Makbool Javaid, head of the discrimination unit at DLA, one of the biggest city law firms in the country.

"When courts and tribunals look at cases," he says, "they will have to interpret them so that they are in line with the Human Rights Act, because the courts and tribunals are public bodies."

He cites a case a few years ago against Conrad Restaurants in London. An applicant for a waitress job was rejected because her hair did not meet the company's dress code standards. The woman, who was black and had braided hair, went to an industrial tribunal claiming racial discrimination. She lost.

"She wouldn't lose now under the Human Rights Act because the tribunal, which is a public body, must comply with the Convention on Human Rights," says Javaid.

He believes her claim would now be covered under the freedom of expression clause.

The act could also affect other areas of employment, such as monitoring of staff, checking for private calls or overseeing e-mails. Dress codes, religious practices, dating policies and benefits exclusively to heterosexual couples could all be challenged. A disgruntled employee could use any of these grounds to strengthen a claim of unfair or constructive dismissal.

"We may see employees trying to tack on arguments alleging a breach of their human rights when bringing other claims," adds Lorraine Desai, solicitor with Paisner & Co.

Compensation chaos?

Nick Crighton, human resources director of specialist markets at Compass, is concerned that the act is just another step towards a compensation culture.

"I'm fearful some lawyers will encourage employees to find new and innovative ways to challenge their employers," he says.

But some in the industry are already aware of the threat. The Hilton Group is taking a wary stance. "We believe Hilton's policies and procedures meet those requirements of the Human Rights Act which will have an impact on employment law," says Ken Pawley, human resources manager at Hilton UK & Ireland. "We will, however, monitor the impact of the act on the decisions of domestic courts and tribunals and will review our current practices accordingly, should this prove necessary."

But the new legislation isn't all negative. Employees may only be able to claim human rights violations as an addition to a specific employment grievance, but the industry will be able to use the new act against a public body in the same way as an individual. That means a decision by a court or a local authority must respect the rights of a company.

"The upside is you don't have to be a human being to have human rights," says Richard Power, commercial director of RF Hotels. "Corporate bodies now have rights that can be protected."

The rights covered are not exactly new, but if an individual wanted to assert them before October, he or she had to go to Strasbourg. Now that those rights are enshrined in British law, many more people and companies are likely to benefit from them.

However, given that the act is likely to prompt a sharp rise in levels of litigation, it is unlikely that individuals or businesses will ever benefit quite as much as the legal profession.

What the law says

The Human Rights Act1998, which came into force on 2 October 2000, incorporates the European Convention on Human Rights into English law. That means it is no longer necessary for people to go to Strasbourg to claim a breach of the rights set out in the convention. So what does the act do?

• Under the act, public authorities have a duty to comply with convention rights unless legislation prevents them. Although the term "public authority" is not defined, it will include local authorities, central government, courts and tribunals. So, local enforcement agencies acting under food safety legislation are under a duty to comply with the rights set out in the convention. For example, in carrying out intrusive action, such as searches, which affects privacy rights, the enforcement agency will have to ensure that the action taken is proportionate to the goal it is designed to achieve.

• Companies have rights, too. Although not all of the convention rights can be applied to companies, it is important to remember that a company can complain of a breach of its convention rights. Key rights to come under the spotlight are likely to be the right to a fair hearing, the right to respect for private life and family life, and the protection of property rights.

• Convention rights will be relevant in a variety of contexts. If a company is considering appealing against a decision taken by its local authority, convention rights may assist. For example, if a local authority withdraws an entertainment licence from a venue where the licence is the main condition for the carrying on of the business, the company may argue that the economic interests of running its business should be protected. If the withdrawal is made because of complaints from local residents about noise and disruption, the court must weigh the residents' rights to respect for private and family life against the economic interests at stake.

• And finally, because courts and tribunals are public authorities within the meaning of the act - and are therefore under a duty to interpret all legislation compatibly with the act - don't be surprised if convention-based arguments crop up in disputes between private parties as well as claims against public authorities. How far the courts will take on board these arguments is uncertain at the moment.

Lorraine Desai, solicitor, Paisner & Co, London. Tel: 020 7353 0299

Source: Caterer & Hotelkeeper magazine, 9-15 November 2000