Engaging Article 8
Labour & European Law Review Weekly Issue 309 07 March 2013
In conduct dismissals, tribunals have to apply the “band of reasonable responses” test to determine whether the dismissal fell within the range of reasonable responses of a reasonable employer. In Turner v East Midlands Trains, the Court of Appeal said that the test did not have to be modified when the employee's rights under article 8 of the European Convention on Human Rights (ECHR) applied as a consequence of the dismissal.
Ms Turner, a senior ticket collector, was dismissed for deliberately manipulating her ticket machine to produce “automatic non-issued tickets” (ANIs) which the company said she then fraudulently sold to members of the public.
The company had no direct evidence of any wrongdoing but relied on statistics from a sample 36-week period between April and December 2009 which showed she had issued far more ANIs, that were not followed by a replacement ticket, compared to other train conductors.
She brought a claim of unfair dismissal in which she argued (among other things) that her rights under article 8 (the right to respect for private and family life) of the ECHR were “engaged”. Her main point was that as a consequence of being dismissed, her reputation had been damaged and her future job prospects affected. Her employer should therefore have carried out a more careful investigation which did not centre on unreliable statistics.
She also argued that the tribunal should use the “proportionality” test in article 8(2) which involves deciding whether the employer had followed fair procedures, including a fair investigation, as opposed to whether the employer had acted reasonably.
Tribunal and EAT decisions
The tribunal, however, did not agree and relied instead on the “band of reasonable responses” test, holding that the approach taken by the company was reasonable.
It also held that article 8 was not relevant and so there was no need to consider how it related to section 98(4) of the Employment Rights Act 1996. However, even if did and section 98 had to be read compatibly with it, the tribunal was satisfied that the “band of reasonable responses” test was itself compatible with article 8.
Ms Turner appealed and although the EAT initially rejected her appeal, it accepted she had raised important arguments that required the Court of Appeal’s consideration.
Decision of Court of Appeal
The Court of Appeal accepted that article 8 was engaged because of the adverse effect of the dismissal on Ms Turner’s reputation. Crucially, however, it added that she could only rely on it if she was not guilty of any wrongdoing and the company had not conducted the process leading up to her dismissal properly.
Noting that European case law had adopted a “light touch” when reviewing human rights in the context of the employment relationship, the Court concluded that the band of reasonable responses test provided a “sufficiently robust, flexible and objective analysis of all aspects of the decision to dismiss to ensure compliance with article 8”.
Although employers must investigate “with a full appreciation of the potentially adverse consequences to the employee”, it was satisfied that the band of reasonable responses test allowed “for a heightened standard to be adopted where those consequences are particularly grave”.
It could not see how a procedure which could be considered objectively fair if adopted by a reasonable employer could then be described as an unfair procedure within the meaning of article 8.
As the company’s procedures in this case were fair and the sanction proportionate, there was no breach of article 8 and the Court dismissed her appeal.
Ms Turner is seeking to appeal the decision to the Supreme Court.