Abstract
It is commonly accepted that the influence of the ECHR on the national labour laws of the signatory States of the ECHR has been increasing over the last years. Two examples may illustrate this trend: the case law of the ECtHR on Article 11 ECHR, especially the recognition of the right to collective bargaining by the Grand Chamber's seminal judgment in Demir & Baykara v. Turkey as well as the right to strike in Enerjij Yapi Yol Sen v. Turkey, and the Court's recent judgments on the respect of private and family life under Article 9 ECHR, which have developed important principles regarding the duties of employer to protect personal data of their employees (see e.g., ECtHR [Grand Chamber], judgment of 5 September 2017, Application No 61496/08 [Barbulescu v. Romania] and judgment of 17 October 2019, Application No 1874/13 and 8567/13 [López Ribalda v. Spain]). In view of this new role of the Strasbourg Court for Labour Law, it is to be welcomed that Elena Sychenko (Associate Professor at the University of Saint Petersburg and Adjunct-Professor at the University of Bologna) and Adalberto Perulli (Professor at the Università di Ca’ Foscari, Venezia) have published with their monograph ‘Employment Law and the European Convention on Human Rights’ a brief and concise analysis of the ECtHR's recent case law dealing with the protection of the fundamental rights of the Convention within the employment relationship. Their approach in only analysing the case law of the period between 2017 and 2021 allows them to identify trends, determining in which direction the case law of the ECtHR evolves on questions regarding the employment relationship.
In the first chapter, the authors spend a section retracing how labour rights have been integrated into the fundamental rights of the Convention and illustrate this evolution with two convincing examples: the ECtHR's broadened understanding of the prohibition of torture, inhuman or degrading treatment or punishment under Article 3 ECHR, which may also comprise the prohibition of inhuman or degrading health and safety conditions at the workplace (ECtHR, judgment of 11 April 2014, Appl. No. 72092/12 [Mazukna v. Lithuania]); and the recognition of the right to ‘private social life’ as an element of the respect of private and family life under Article 8 ECHR, enabling the Court to extend the protection of this fundamental right to labour rights (e.g., unfair dismissal).
In the second section of the first chapter, the value which the ECtHR gives to international law when interpreting the Convention is explored. The standards of the ILO, including the ‘case law’ of the Committee on Freedom of Association (CFA) and the interpretive practice of the Committee of Experts for the Application of Conventions and Recommendations (CEACR), have been used by the Court, in particular, to interpret the fundamental rights of the ECHR as a living instrument; the seminal judgment of the Grand Chamber in Demir and Baykara vs. Turkey is well-known. But given the long-standing controversy within the ILO on the existence of a right to strike under Article 3 Convention 87, it would have made sense to also problematise this methodological approach of the ECtHR. As a matter of fact, the CEACR and the CFA are bodies which were set up by the ILO Governing Body and which are not foreseen in the ILO Constitution: in the absence of a specific ILO Court, set up on the basis of Article 37, § 2 ILO Constitution, the competence to authentically interpret ILO law has been conferred on the ICJ (Article 37, § 1 ILO Constitution); as is well known, the ILO has submitted to the ICJ the question of whether Article 3 Convention 87 also guarantees the right to strike. The Governing Body, when establishing both the CFA and the CEACR could not delegate to them a power that it has never possessed itself: nemo plus iuris ad alium transferre potest quam ipse haberet. This does not mean that the constant interpretive practice of the CEACR and the ‘case law’ of the CFA is deprived of any legal relevance - it may be considered as a subsequent practice in the application of the ILO Constitution within the meaning of Article 31(3)(b) of the Vienna Convention on the Law of Treaties (1968). In my view, there is a high probability that Convention 87 also enshrines the right to strike as a subsequent practice, but the devil is in the detail because a classification as subsequent practice requires an analysis on a case-by-case basis of all different forms of collective action which the supervisory bodies have recognised over the last decades (e.g., the right to strike of civil servants, the admissibility of solidarity strikes etc.).
The second chapter of the book analyses the ECtHR's recent case law on the prohibition of slavery, servitude, forced or compulsory work under Article 4 ECHR. Sychenko and Perulli show how the Court has broadened the scope of this fundamental right, in particular with regard to exploitation through work, protection against prostitution and the protection of victims of human trafficking.
In the third chapter, the authors retrace the recent case law of the ECtHR on the prohibition of discrimination within the meaning of Article 14 ECHR. Special focus is placed on discrimination on grounds of sex. It is demonstrated how the Court has conferred to the signatory States a narrow margin of appreciation when ‘being a man’ or the completion of military service is a requirement for the access to a specific job (e.g., in ECtHR, judgment of 2 December 2014, Appl. No. 61960/08 [Emel Boyraz v. Turkey]). Furthermore, the Court's case law on COVID measures such as compulsory vaccination is briefly considered. The authors underline the importance and open attitude of the Court in recognising discrimination on grounds which are not explicitly listed in Article 14 ECHR, insofar as the general prohibition of discrimination under Article 1 of Protocol 12 applies. They convincingly demonstrate that this openness of the Court may be relevant when grounds of discrimination are not recognised by the national law of signatory Parties to the ECHR or EU law whose Directives and Article 21 of the Charter of Fundamental Rights lag behind the grounds recognised under Article 14 ECHR.
The fourth chapter deals with the increasingly important case law of the ECtHR on the right to respect for private and family life under Article 8 ECHR. In this context, the authors examine two strands. In a first section, the general framework and the recent judgments of the Court on ‘employee privacy’ and, more precisely, on employee data protection are analysed. They contrast the employer's duty of prior notification of surveillance measures, recognised by the Grand Chamber's seminal decision in Barbulescu v. Romania as the criterion for the proportionality test, with the Court's judgment in Libert v. France (Appl. No. 588/13), where this duty was not even mentioned. They therefore come to the conclusion that the Court's reasoning in Libert is ‘confusing’. However, in Lopez Ribalda v. Spain (Sppl. No 1874/13 and 8567/13) – a judgment rendered after Libert v. France – the ECtHR made clear that a prior notification of monitoring or surveillance measures is not a condicio sine qua non of their conformity with Article 8 ECHR, and that in cases where this information is lacking, other safeguards for the protection of employee privacy become more important for the proportionality test. The reasonable suspicion of serious misconduct and the extent of the losses, for instance, may justify video-surveillance of employees without prior notification.
In a second section of Chapter 4, the authors analyse the impact of Article 8 ECHR on the national laws of the signatory States on unfair dismissal. At the core of this part is obviously the decision of the ECtHR of 25 September 2018 in Denisov v Ukraine (Appl. No 76639/11), which recognised for the first time a positive obligation of the signatory States, resulting from Article 8 ECHR, to protect employees against unfair dismissals, i.e., dismissals that are linked to the individual's personal life (‘reason-based approach’) or may have serious negative effects on the individual's private life (‘consequence-based approach’). It is fully justified that the authors have reproduced the key paragraphs of this important judgment of the ECtHR as an Annex to their monograph. Every national labour law has to be tested on whether its rules on dismissal protection are in conformity with this new case law on Article 8 ECHR. However, the requirements resulting from this positive obligation under the right to respect of private and family life are far from being clear.
The fifth chapter is dedicated to freedom of thought, conscience and religion (Article 9 ECHR). One decision that the authors place emphasis on is the Grand Chamber's judgment of 27 October 2009 in Bayatyan v Armenia (Appl. No 75604/11), which recognises a right of a Jehovah's Witness to conscientiously object to military service under Article 8 ECHR. Even though the case does not deal with an employment relationship stricto sensu, it underpins the high relevance that religious freedom has gained in the case law of the ECtHR and may give further direction on how to weigh religious freedom or freedom of conscience in conflicts with other fundamental rights (e.g., the employer's right to property). As far as religious freedom in the employment context is concerned, special mention is made of the Court's judgment of 15 January 2013 in Eweida and others v. UK, even though the decision was handed down outside of the period of reference examined by Sychenko and Perulli. However, given the impact of the Eweida decision, the authors are more than justified in looking at its consequences for recent case law of the ECtHR and of the CJEU.
In the last three chapters, the monograph turns to collective labour rights which emanate from the right to freedom of association under Article 11 ECHR. Chapter 6 mainly retraces the evolution of the ECtHR's case law from a narrow understanding of freedom of association, which did not include the right to collective bargaining and the right to strike, to a broader understanding of this fundamental right since the Grand Chamber's judgment in Demir & Baykara v. Turkey, and recalls that the consideration of international law (e.g., the law of the ILO and its supervisory bodies) has been the core method used by the Court to develop further its case law. However, the authors identify divergences between the recent case law of the Court and ILO law or the ESC, and characterise the Court's new direction as one of ‘social frigidity’, which is probably going too far.
Regarding the right to strike, the authors observe such divergences as well. The ECtHR considered in Ognevenko v. Russia (judgment of 20 November 2018 – Appl. No 44873/09) that a general ban on the right to strike for railway workers violated Article 11 ECHR and heavily relied on the principles of international law on essential services. However, in Baris and others v. Turkey (Appl. No 66828/16 et al.), the Court ruled that a dismissal of employees on account of their involvement in a strike organised outside a trade union context did not violate freedom of association since the strike was not arising from ‘a conflict in the course of the negotiations to conclude a collective agreement’. Another more recent example of this relatively new trend in the ECtHR's case law which diverges from ILO law is the Grand Chamber's judgment of 14 December 2023 in Humbert and Others v. Germany (Appl. No 59433/18), which has confirmed that the status-based general ban on civil service strikes in Germany is in line with Article 11 ECHR, although the settled interpretation of the supervisory bodies of the ILO, i.e., the CFA and the CEACR, is that in principle civil servants also have a right to strike which may be restricted or even excluded in essential services, ‘provided that the limitations are accompanied by certain compensatory guarantees’ (see Compilation of the decisions of the CFA, Geneva, paras. 827 et seq).
It is certainly not an exaggeration to state that the ECtHR has tried, in its recent case law, to regain autonomy or flexibility vis-à-vis ILO law when it comes to the right to collective bargaining or the right to strike under Article 11 ECHR. The reasons for this new reticence of the Court towards international (labour) law in the field of freedom of association remain unclear. It is not to be expected that this trend will change after the possible recognition of the right to strike under ILO law by the International Court of Justice. The subject of dispute in the pending request of the ILO for an advisory opinion from the ICJ is only the existence of a right to strike under Article 3 Convention 87 as such, and not the elements of this guarantee such as the solidarity strike or the right to strike of civil servants (see ILO Request of 10 November 2023 for Advisory Opinion of the ICJ).
One of the merits of this book by Elena Sychenko and Adalberto Perulli is without doubt that it assesses, in a very concrete and comprehensive way, these trends in the recent case law of the ECtHR on labour rights. It provides useful information and well-worked analyses of the cases which the Strasbourg Court has decided in the period between 2017 and 2021. For these reasons, it is recommended for those who are interested in the influence of the ECHR on the national labour laws in Europe. If the authors decide to publish a follow-up when the time comes to examine the new case law of the ECtHR, it would be most welcome.
