Fundamental Rights in Employment Law
Fundamental rights concern the most basic rights of citizens. They are rights that protect the principles of the rule of law. These rights apply to citizens against the state, but also between citizens themselves. Therefore, fundamental rights also play a role between employers and employees. Increasingly, we see employees successfully invoking their fundamental rights in their employment relationships.
Where are fundamental rights found?
In the Constitution. But they can also be found in various treaties, such as the European Convention on Human Rights and Fundamental Freedoms (ECHR), the Charter of Fundamental Rights of the European Union, and the International Covenant on Civil and Political Rights (ICCPR).
Which fundamental rights?
There are numerous fundamental rights that can impact an employment relationship. Consider the following rights:
prohibition of discrimination;
right to freedom of expression;
protection of privacy and personal life; and
prohibition of violations of physical integrity.
Fundamental right, absolute right?
No. The legislator can make exceptions to fundamental rights. For example, the Constitution often states: “subject to everyone’s responsibility according to the law” or “subject to restrictions imposed by or pursuant to the law.” This is common. Laws that infringe on fundamental rights cannot be tested against the Constitution. In practice, you mainly see that when fundamental rights are at issue, lawyers invoke fundamental rights enshrined in treaties. These may be tested by courts. The fundamental rights relevant to employment law are found both in various treaties and in the Constitution.
How do fundamental rights work in employment law?
Usually not directly. Fundamental rights are intended as safeguards of citizens’ rights vis-à-vis the government, not vis-à-vis each other. Yet there are several ways in which fundamental rights play an important role between employer and employee:
You can invoke a national provision and argue that it conflicts with a fundamental right in a treaty. In that case, the judge will try to resolve the conflict by interpreting the provision in the spirit of the fundamental right.
The government has an obligation to safeguard fundamental rights. If the government fails in that obligation, this may lead to liability.
In case of a violation of the ECHR, the European Court of Human Rights (ECtHR) can be asked to assess whether a judicial decision complies with the ECHR. However, this is only possible after all appeals in the Netherlands have been exhausted.
Practical example: the tattooed tram conductors
The RET (Rotterdam public transport) believes tram conductors should not have visible tattoos. RET issued a rule that tattoos must be covered. The union for tram personnel started a procedure. An employer may give instructions, as stated in law: Article 7:660 of the Dutch Civil Code. The union argued, however, that using this instruction in this way violates the fundamental right to respect for private life. This case illustrates the approach where a judge must assess a national legal rule in light of a fundamental right enshrined in a treaty. The court of appeal examined whether the tattoo policy was a necessary and proportionate means to achieve the goal: a uniform and professional appearance. In this case, the outcome was favorable to the tattooed tram conductors, who did not have to cover their tattoos, mainly because the policy was flawed and inconsistently applied.