Guillotines hastened the introduction of a new constitution during the French Revolution. The Human Rights Act, which will introduce what is in effect a new constitution to this country next year, will be less bloody. But could its effect be just as dramatic?
Whatever its impact, employment will be a key testing ground for many of the rights.
'The act represents an important change in culture in this country, namely the right of every citizen to enforce fundamental human rights and freedoms in UK courts,' says Steven Griffin, director of employee relations at the Royal College of Nursing.
Solicitor Ray Silverstein, who heads the employment team at Browne Jacobson, warns: 'The public sector is far more vulnerable for issues to be taken against it under the act than the private sector. Initially there will be a fair number of claims as people test it out.'
Rights and freedoms guaranteed under the European Convention on Human Rights will in future take direct force in English law, so instead of alleged breaches having to be heard before the European Court of Human Rights they can now be heard before judges in this country.
Unlike current unfair dismissal claims, there will be no limit on awards for breaches of convention rights. As a result, aggrieved employees may make dual claims alleging both unfair dismissal under current domestic legislation and a breach of their human rights.
Public sector employees working in government departments and local authorities will have direct remedies if employers breach their convention rights, while those working for private individuals and organisations will not.
The relationship an NHS trust has with its employees is likely to come before the courts soon after the act takes effect to test whether it will be directly governed by the convention.
This distinction between public and private sectors is far from academic. Elizabeth Adams, partner in the employment law department of solicitors Beachcroft Wansbroughs, explains: 'If the act is construed narrowly, then the health service will not be in a different position to any private employer. There are likely to be a lot of cases concerning whether an employee in the health service is directly covered by the act.'
Despite the distinction, it is important to bear in mind that the act specifically includes courts and tribunals within the definition of public authorities. So if someone brings an employment claim before a court or tribunal, it will be obliged to interpret the law to comply with the convention.
Since the act introduces completely new concepts to English law, the situation is uncertain as well as complex.
Dianah Worman, equal opportunities policy adviser at the Institute of Personnel and Development, says there is only one way to approach it. 'I hope people will think out their position. They should get to know it and review their practice in its light,' she says.
'Looking solely to the law is not enough. Good practice is essential. If people sit back and wait for law, regulation and court judgements, then they probably won't like the results because their hands will be tied.'
Fundamental as the rights set out by the convention may be, it does allow for some of them to be restricted. Articles 8 and 10 (on respect for private and family life and freedom of expression) can be restricted in the interests of public safety, health, and the freedoms and rights of others, as well as for a number of other reasons.
But the convention also subjects restrictions to tests of proportionality and justification. If a right is to be restricted, it must be 'proportionate to the legitimate aim pursued' and the restriction must not be more than is necessary. Nor must it be discriminatory.
Patient confidentiality and safety may mean restricting the freedom of expression and privacy of employees (by using techniques such as CCTV), but if to do this a trust taps the private phones of all staff this is likely to be disproportionate and unjustified.
David Towns at the NHS Litigation Authority warns: 'Employers who don't abide by the act cannot be expected to be recompensed from our schemes. We will be looking at the details of the new act, and I would advise everyone to be up to speed with what it means.'
NHS Confederation human resources chair Andrew Foster says: 'There is already widespread good practice in the NHS on factors covered by the convention, such as disciplinary procedures, freedom of speech and discrimination.
'Trusts are often ahead of the game on European and other rights'.
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