Veitch Penny LLP - Exeter | Crediton, Devon

Case

X v Y
Court of Appeal - (28 May 2004)

Issues

(1) Unfair dismissal
(2) Articles 8 and 14 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. Y was a Charity promoting personal development of young offenders. The Applicant’s work involved him organising and running activities for groups of young people under his direct supervision.

Whilst off duty in January 2001, X engaged in a consensual sexual act in the toilets of a transport café. He was arrested for the offence of gross indecency and received a caution from the Police. He did not disclose the incident or the caution to the Respondent. There had been no concerns about his work.

In July 2001 the Respondent learnt of the incident. The caution had come to light as a result of normal Police checks made by the local Probation Service who provided funding to the Charity. An investigation was undertaken and a finding of gross misconduct was made. X was dismissed.

X made a complaint of unfair dismissal arguing that his dismissal has been made in breach of his human rights under the Human Rights Act 1998. His complaint to the Tribunal was dismissed as a finding was made that the dismissal was fair. His appeal to the Employment Appeal Tribunal (EAT) was also dismissed.

X then appealed to the Court of Appeal.

Decision

The Court of Appeal affirmed the decisions made by the Tribunal and the EAT. It confirmed that Article 8 was not engaged in this case as the facts found by the Tribunal did not fall within its ambit. Article 8 related to X’s right to a private life, and the Court confirmed that this could not apply as X’s conduct had not taken place in his private life, as the offence took place in a public place.

As Article 8 was not triggered, the case could not fall within the ambit of Article 14, which prohibits discrimination.

The Court also stated that the reason for the dismissal included X’s non-disclosure which he should have disclosed as relevant. Also it was doubtful whether Y had infringed X’s rights under Article 8 and 14 by relying on the caution in its decision. The Charity was a private employer and was entitled to treat the caution as an acceptance the offence had been committed and as gross misconduct. This would continue as long as the conduct remained a criminal offence.

Comments

The Court of Appeal took the opportunity to consider the application of the Human Rights Act to private employers (as the Human Rights Act is directly applicable only against Public Authorities). The Court of Appeal suggested the following framework of questions for future Tribunals to use.

1. Do the circumstances of the dismissal fall within the ambit of one or more of the Articles of the Convention? If not, the Convention right is not engaged and need not be considered further.

2. If yes, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons? If not the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer.

3. If yes, is the interference with the employee’s Convention right by dismissal justified? If it is, proceed to question 5 below.

4. If not, was there a permissible reason for the dismissal under the Employment Rights Act 1996 which does not involve unjustified interference with a Convention right? If not, the dismissal will be unfair for the absence of a permissible reason to justify it.

5. If there was, was the dismissal fair, tested by the provisions of Section 98 of the Employment Rights Act, reading and giving effect to them, under Section 3 of the Human Rights Act so as to be compatible with the Convention right?

Rachel Bickle – Trainee Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it