The full force of the Human Rights Act is about to hit health service employers with a sledgehammer. Colin Wright reports

The Human Rights Act, derided in many quarters as an excuse for a giant pay day for 'fat cat' lawyers, comes into effect next week. Significantly extending the rights of employees, it is set to make a range of demands on health service employers - or leave them open to a bewildering range of claims for unfair dismissal.

In Scotland, where many of the act's demands were incorporated in the devolution legislation, a nurse who was found drunk on duty is appealing against her dismissal on the grounds that she had not been told that such behaviour was unacceptable before she was sacked.

The act covers issues such as employee surveillance, e-mail, sexual harassment and Internet abuse. It requires that employees are informed in advance that they may be subject to covert surveillance and that their phone calls and e-mail may be monitored.

The act means that organisations must outline any proscribed behaviours and actions.

'This could mean banning the use of personal emails, spelling out the need for staff to be sober while on duty' or restricting use of the Internet.

Failure to notify in advance or to establish that the 'culture' within an establishment does not condone specific actions could result in claims of unfair dismissal.

Much of the legislation in the act was incorporated in the Scotland Act 1999, which led to the establishment of the Scottish Parliament.

The result has been a number of cases in which acceptable codes of behaviour were not outlined in sufficient detail before an employee was sacked.

The act covers the 'balance between the employer's right to have work done properly and employee's right to retain dignity and privacy at work', according to Euan MacLeod, a partner with law practice Dundas and Wilson.

He explains: 'There is a need for clear guidance and policies to establish parameters of acceptable conduct and to monitor and enforce those parameters. '

He adds: 'It is not for an employer to ascribe a moral view on how an employee does their work - that is, if they fulfil their tasks while downloading pornography from the Internet it would not be in breach of their contract unless the employer specifically states that pornography is not a part of the establishment's culture. Employees' productivity should be measured against output, not time spent in the workplace. '

One of employers' worries about the act is that it is so broad it can attempt to defend almost all forms of behaviour if an appropriate memo or instruction to staff has not indicated that such actions are unacceptable.

Donald McNeil, development officer with the Institute of Healthcare Management in Scotland, says: 'There is no doubt that the act has the potential for grief in the future and that a lot of managers require much greater clarification of what it means and how it can be implemented.

'Good employers have already implemented many of the requirements of the act, but there will undoubtedly be some in Scotland who will need some more information before they are suitably prepared.

'I think that it has always been the manager's responsibility to outline in detail appropriate behaviour in employees, but clearly this may change the outcome of tribunals for those trusts which have not given sufficient detail in their criteria for acceptable behaviour. '

The IHM in Scotland is incorporating sessions on the act in its December conference and a new legislation partnership forum has been established to look at the issues the act raises. Its aim is to produce joint management and union guidance to pre-empt many of the problems which implementation of the act could produce.

Unison head of health in Scotland Jim Devine explains: 'We do believe that this act is going to raise a number of potentially major issues and we are concerned that we need to meet and liaise over this now so that we can be prepared for what the act might produce. '

The application of the act within the NHS is likely to impact on the use of covert surveillance to detect thefts or drugs sales.

It will demand strictures on the use of computers to download pornography, on sexual harassment in the workplace and personal phone calls.

Mr MacLeod explains: 'Covert CCTV surveillance by an employer may also be in breach of the act if its use cannot be justified in court. I would recommend early action on breaches of employees'contracts and ensuring that all staff are aware of policies and of the potential for surveillance to be used intermittently if the employer suspects there is a problem. '

Mr McNeil agrees: 'Good managers will already have established clear guidelines, informed their staff of what those guidelines are, what is acceptable behaviour and will continually monitor and act upon what they find.

'I believe that the best way forward will be for individual trusts to develop their own working groups to examine what is required and to establish some form of agreement locally which should be signed up to by employers and employees. '