The Human Rights Act and the Public/Private Divide in Employment Law

The Human Rights Act 1998 (HRA) makes it unlawful for a ‘public authority’ to act in a way which is incompatible with a ‘Convention right’. ‘Public authority’ is not defined in the Act but includes, inter alia any person certain of whose functions are of a public nature. However, in relation to a particular act, a person is not a public authority by virtue only of that provision if the nature of the act is private. This, potentially, could mean that public authorities with ‘mixed’ private and public functions would not be liable if they acted towards their employees in a way which breached their Convention rights. This article analyses the boundary between the public and the private spheres created by the Act and compares it with that developed in other areas relevant to employment law: judicial review; the European Convention on Human Rights; and EC law. It argues that the HRA should be interpreted in such a way that all bodies performing public functions are liable for breaches of Convention rights in relation to the treatment of workers engaged in the performance of such functions, an approach supported by the Strasbourg jurisprudence.