The Human Rights Act may have some major effects on employment law, though as Stephen Grosz explains, there are many myths surrounding just what the implications will be.Much has already been written about the Human Rights Act 1998 (HRA) and employment, with some fairly extravagant claims being made.

There are certainly likely to be some important changes, but some commentators make the mistake of ignoring the substantial protection which our law already affords.This article seeks to identify the important benefits which the HRA will give employees, while at the same time curbing some of the more extravagant claims which have been made for the Act as a vehicle of employment rights.Although on its face at least, the HRA does not appear to bind every employer to respect employees' rights afforded by the European Convention on Human Rights - rather only public authorities - in practice, the HRA will affect all employment relations.

It must also be borne in mind that the Convention was aimed primarily at civil and political rights, social rights being the province of the European Social Charter.

The only Convention provisions which expressly cover work-related rights are Article 4, which prohibits forced or compulsory labour, and Article 11, which guarantees freedom of association, including the right to form and join trade unions.

Although the Convention is a 'living instrument', which must be interpreted in the light of present-day conditions, the European Court of Human Rights in Strasbourg has been ungenerous in its development of employment rights.

However, our own courts are obliged only to take account of, but not to follow, the Strasbourg case law, and may choose to cut through the anomalies and limitations which it discloses.

Below are some of the areas which Strasbourg has held to be covered and some which are not.

MONITORING STAFF COMMUNICATIONSInterference with communications by staff - telephone calls, e-mails or Internet use - is likely to be one of the most difficult areas.

Article 8(1) of the Convention guarantees a right to respect for private and family life, home and correspondence.

Interference can be justified only if it is 'in accordance with the law' and 'necessary in a democratic society' for one of a number of purposes, namely 'in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.' (Article 8 (2)).Staff will have no expectation of privacy if they are made aware that telephone, e-mail and so on may be used for private communication, but the communications are liable to be monitored.COMPILING AND MAINTAINING STAFF RECORDSThe right to respect for private life also entails a person's right to keep personal information to himself.

Clearly, an employer is entitled to certain personal data for the purpose of his records, and employees will have no expectation of privacy to the extent of an employer's reasonable requirement for information.

However, intrusive questions about personal matters should be avoided if they cannot be justified.

Disclosure of personal information about staff to third parties without consent would amount to interference with the employee's right to respect for private life.

It is permitted only if there is legal authority for disclosure and it is considered to be necessary for one of the purposes lis ted in Article 8(2) set out above.

The court has attached particular importance to the confidentiality of medical information.

RESTRICTIONS ON FREEDOM OF EXPRESSION AND ACTIVITIESAlthough Article 10(1) guarantees a right to freedom of expression, this is limited by Article 10(2) which is similar to Article 8(2).

Employers are therefore entitled to insist that staff do not give out information about their activities, in the interests of the rights and freedoms of others, including the maintenance of confidences.

Article 11 of the Convention guarantees the right to freedom of association, including the right to form and join a trade union.

It also guarantees the negative right not to be forced to join a union.

Both the positive and negative rights are subject to exceptions - either expressly or by implication - of the kind set out above in relation to Article 8.

In practice, Article 11 has been interpreted relatively narrowly and it is unlikely that it will add anything to the protection available under existing law.

The legitimacy of other restrictions on freedom of expression and association in the public service has been accepted, for example on political activities of local government employees in 'politically restricted posts'.INTERNAL DISCIPLINARY PROCEEDINGSArticle 6 guarantees the right to a fair and public hearing within a reasonable time before an independent and impartial tribunal in the determination of a dispute concerning a 'civil right'.

It also guarantees a right of access to a court.

Some have argued that internal disciplinary proceedings - at least those leading to dismissal - must comply with these guarantees.

They are probably wrong, for two reasons.First, such proceedings do not determine a dispute concerning a civil right.

Secondly, the right to a fair and public hearing is satisfied if the individual has access to a court or tribunal which can deal with all aspect of the dispute.

In employment cases, Article 6 will be satisfied by the availability of an application to the employment tribunal.TIME OFF FOR RELIGIOUS OBSERVANCEArticle 9 of the Convention guarantees the freedom to manifest one's religion.

Arguments that this entitles employees to time-off on religious holidays or days of rest have failed in Strasbourg.

The right to exercise one's religion may be limited by contractual obligations, provided that the employer gives due consideration to the position of the employee and does not arbitrarily disregard his freedom of religion.

Claims relating to time-off have arisen in domestic law under the indirect discrimination provisions of the Race Relations Act, but the discrimination provision of the Convention may provide some further scope for the development of religion-based rights.

DRESS CODES AND HAIRSTYLESIt has been said that the right to freedom of expression will entitle employees to wear what they like, with employers unable to impose standards of reasonable dress.

There is no Strasbourg case law to support this proposition, all applications to this effect having failed.The indirect discrimination provisions of the Race Relations Act are more likely to provide a remedy in appropriate cases, and wise employers are already seeking to comply with this legislation.

LONG HOURS It has been suggested that the requirement to work long hours or at weekends, on pain of dismissal, or to work conditions causing stress-related illness, may violate the prohibitions on forced labour, inhuman and degrading treatment and interference with respect for private life.

No forced labour claim has e ver succeeded in Europe, nor has any stress claim or argument about interference with private or family life ever succeeded.

The reasons are that the employment relationship is contractual, leaving the individual with the option of resigning, and the degree of suffering necessary to mount a claim for inhuman or degrading treatment exceeds what is normally found within the work place.

The guarantees available under the Working Time Regulations and the principles of existing law relating to bullying, harassment and indirect sex discrimination already provide greater guarantees than anything under the Convention.DISCRIMINATIONArticle 14 provides that enjoyment of Convention rights must be secured without discrimination on any ground, such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or 'other status'.

This does not provide an independent prohibition of discrimination.

It is linked to the enjoyment of Convention rights.

Nonetheless, it is possible to violate this provision without violating the other rights.

An activity may affect the enjoyment of a Convention right without violating it, for example a refusal to give someone time off for a religious holiday.However, if that activity treats different classes of people in different ways where they are otherwise similarly placed, that distinction in treatment must be objectively justified.

This means that an employer must show that the distinction has a legitimate aim and that the difference of treatment is a proportionate means of achieving that aim.

This will have little impact on discrimination based on race, sex or disability, for which legislation already exists.

However, it may have more effect on differences of treatment on grounds of religion, sexual orientation or age, where those differences affect the enjoyment of a Convention right.

WHERE TO BRING PROCEEDINGSSome interesting issues may arise about where HRA points are to be litigated.

Public authority employees relying on their employer's duty to act compatibly can bring or defend proceedings in the 'appropriate court or tribunal'.

The Act provides that this may be determined by rules, but at present, the government does not propose to make any such rules relating to the jurisdiction of employment tribunals.

Tribunals will have jurisdiction to the extent that they can achieve compatible results by interpretation of the statutes they administer: applicants should be sure to include express reference to the HRA in the application form (IT1) in appropriate cases.At present, it looks as though other cases will fall to be determined in the ordinary civil courts.

But it is unclear whether the appropriate procedure will be private or public law.