Veitch Penny LLP - Exeter | Crediton, Devon

Case

X v Y
Employment Appeal Tribunal - (11 June 2003)

Issues

(1) Unfair dismissal
(2) Article 8 of the European Convention on Human Rights
(3) Sexual orientation

Facts

The Applicant, X, had been employed as a Development Officer by the Respondent, Y, a charity promoting personal development among young people. His work involved him organising and running activities for groups under his supervision. X was a homosexual, who had not disclosed his sexual orientation to his family or employer.

In January 2001, whilst off duty, X engaged in a consensual sexual act in the toilets of a transport café. Both men were arrested for the offence of gross indecency. X was taken to a police station and received a caution. He did not disclose the incident or the caution to his employer.

In July 2001, Y learned of the incident. An investigation was undertaken, following which a finding of gross misconduct was made. X was dismissed.

X made a complaint of unfair dismissal, and argued that his dismissal had been in breach of his human rights under the Human Rights Act 1998. His complaint was dismissed. The Tribunal found that X had not been dismissed due to his sexual orientation, but because he had committed a criminal offence that had a direct bearing on his employment. For the purposes of section 98 of the Employment Rights Act 1996, the dismissal for that reason was fair.

X appealed. He submitted that the incident was a private act under Article 8 of the European Convention on Human Rights, and that fact that he had been dismissed because of it offended his rights under Article 14.

Decision

The Employment Appeal Tribunal dismissed the appeal.

It was accepted that the prohibition of discrimination in Article 14 extended to discrimination based upon grounds of sexual orientation. X’s dismissal was based upon the commission of a criminal offence, and not his sexuality. The Tribunal’s decision could not be faulted, given the circumstances, the nature of his employment and the fact that he did not disclose the conduct. The employer’s action was within the band of reasonable responses.

Comments

The question the Employment Appeal Tribunal had to consider was whether this case fell within the ambit of Articles 8 and 14. The criminal offence for which he was cautioned was causally linked to his sexuality. However, the offence took place in a public place and did not fall within the ambit of the right to respect a person’s private life in Article 8. Accordingly, Article 14 was not engaged.