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||Neutral Citation Number:  EWCA Civ 1470
||Case No: A2/2012/1688/EATRF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ SEROTA QC
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY,
VICE PRESIDENT OF THE COURT OF APPEAL
LORD JUSTICE ELIAS
SIR STEPHEN SEDLEY
||- and -
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(Transcript of the Handed Down Judgment of
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Ms Heather Williams QC and Mr Paul Draycott (instructed by Thompsons Solicitors) for the Appellant
Mr Jason Galbraith-Marten and Ms Sheryn Omeri (instructed by Kennedys Solicitors) for the Respondent
Hearing date : 9 October 2012
HTML VERSION OF JUDGMENT
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Lord Justice Elias :
- It is now a firmly established principle of unfair dismissal law that when an employment tribunal has to determine whether an employer has acted fairly within the meaning of section 98 of the Employment Rights Act 1996, it applies what is colloquially known as the "band of reasonable responses" test. In other words, it has to ask whether the employer acted within the range of reasonable responses open to a reasonable employer. It is not for the tribunal to substitute its own view for that of the reasonable employer. That principle has been enunciated in the line of cases beginning with British Home Stores v Burchell  IRLR 379 and affirmed in cases such as Post Office v Foley  IRLR 827, Sainsbury's Supermarkets v Hitt  ICR 111, London Ambulance Service NHS Trust v Small  IRLR 563 and, most recently, Orr v Milton Keynes Council  ICR 704.
- The issue raised in this case is whether that test has to be modified in circumstances where the employee's rights under Article 8 of the European Convention on Human Rights are engaged as a consequence of the dismissal. The contention is that where this is the case, it is for the court to determine whether or not the Article 8 right has been unlawfully infringed; it is not enough for the court simply to review the decision taken by the employer, and which, it is submitted, is all that the traditional test permits.
- For the purpose of understanding the issues in this appeal, the facts can be summarised relatively briefly. The appellant was a senior train conductor who had continuously worked for the respondent or its predecessors for more than 12 years. At the time of her dismissal she had a clean disciplinary record. She would issue tickets using a computerised ticket machine (an Avantix machine). Sometimes the machine would produce what was termed a "non-issued" ticket. There are two kinds of non-issued tickets. The first arises in those very exceptional cases where a passenger changes his or her mind as to the ticket requirements during the transaction. Such tickets must always be returned by the conductor and should be recorded on the shift sheet i.e. the record for the particular shift. The second kind is what are termed "automatic non-issued tickets" (ANIs). These are tickets which are faulty in some respect so that they ought not to be sold to the customer. These tickets should also be returned, but in this case there is no requirement to record them on the shift sheet.
- The charge against the appellant was that she had inappropriately and over a period of time deliberately manipulated the ticket machine so as to produce ANIs of the second kind of sufficiently merchantable quality to give the appearance of being genuine tickets and had then fraudulently sold them to members of the public and dishonestly kept the proceeds.
- There was no direct evidence that the appellant had acted in this manner; the case for the employer was based upon statistics and the inferences which, it was alleged, could properly be drawn from them. These statistics were derived from a sample 36-week period commencing on 4 April 2009 and terminating on 12 December 2009. It was discovered that the appellant had 132 ANIs in the relevant period, whereas the next highest number of ANIs for a senior conductor was twenty.
- The key conclusion of the Tribunal is summarised at paragraph 36 of the decision as follows:
"It is correct that in the course of the Hearing the Judge did observe that there are no instances of potentially suspect tickets having been issued "en bloc" but that rather the evidence relied upon points to a single, usually low value, ticket being generated occasionally and usually only once per shift. Whilst the Judge might, therefore, have been inclined to question the likelihood of this pattern being in fact indicative of the dishonesty alleged it is highly significant that the lay members of the tribunal have no such scruples. From their long experience of both sides of industry both Mr Bratby and Mrs Bullock readily accept that the evidence before the Respondents was more than sufficient to justify the conclusion that this was indeed indicative of repetitive, albeit spasmodic pilfering, and that the relatively low sums involved are not at all atypical of this type of dishonesty in the workplace. There is certainly no reason to say that the view taken by the Respondents was, therefore, outside the band of reasonable responses. To hold otherwise would indeed be inappropriately to substitute our own view for that of the reasonable employer with specific knowledge of their own industry."
- The appellant contends that for a variety of reasons it was not legitimate to draw this inference because there were other factors which tended to suggest that the statistics may be inaccurate or misleading and that the appellant may be innocent. Indeed, at the heart of the appeal is the contention that there was an inadequate investigation of various matters which, if properly explored, might have demonstrated that the statistics were unreliable. I deal with these points later in the judgment. It is important to note, however, that it is conceded that on the traditional band of reasonable responses test, the employment tribunal's conclusion that the investigation was fair is unassailable. The submission is that the effect of the dismissal was to engage the rights of the appellant under Article 8 of the Convention and that the investigation did not satisfy what is alleged to be the stricter procedural requirements which the proper protection of Article 8 rights requires.
The decision of the Employment Tribunal on the Article 8 points.
- The Employment Tribunal considered the particular submission being advanced in this appeal. It found that Article 8 was not engaged and so the relationship between that provision and section 98 did not arise. But the Tribunal considered that even if it did, and the court had to read section 98 compatibly with Article 8 in accordance with section 3 of the Human Rights Act, the application of the traditional band of reasonable responses test was itself compatible with Article 8. The Employment Tribunal set out at length extracts from the judgment of Lord Justice Mummery in X v Y  ICR 1634 in which His Lordship analysed in considerable detail the effect of Article 8 on the law of unfair dismissal. The Tribunal emphasised certain passages in that judgment, and in particular the following observations of Mummery LJ at para 59(4):
"It is not immediately obvious, on a reading of section 98 without reference to a particular set of facts, as to how it could be incompatible with or be applied so as to violate article 8 and article 14 and so attract the application of s3. Considerations of fairness, the reasonable response of a reasonable employer, equity and substantial merits ought, when taken together, to be sufficiently flexible, without even minimal interpretative modification under s3, to enable the employment tribunal to give effect to applicable Convention rights. How, it might be asked, could the proper application by the employment tribunal of the objective standards of fairness, reasonableness, equity and the substantial merits of the case result in the determination of a claim for unfair dismissal that was incompatible with article 8?"
- The Tribunal considered that even had Article 8 been in point, these observations were applicable in this case. The Tribunal also noted that whilst Lord Justice Mummery had gone on to say that Article 8 exceptionally might make a difference to the reasoning of an employment tribunal, there was nothing exceptional to justify any different approach in this case.
- The employee appealed to the Employment Appeal Tribunal. His Honour Judge McMullen QC rejected the appeal on paper essentially on the ground that the Employment Tribunal had reached a perfectly sustainable decision on the facts and that the EAT was not entitled to interfere.
- The grounds of appeal were amended and there was a further reconsideration by the same judge under Rule 3(8) but again that was unsuccessful. At that point the appellant sought an oral hearing to determine whether she should be allowed to appeal, as she was entitled to do under Rule 3(10). Her claim was considered by His Honour Judge Serota QC. He held that the EAT was bound by the decision in X v Y and that it would have to be for the Court of Appeal or the Supreme Court to choose to depart from that decision. He concluded therefore that the appeal had no reasonable prospect of success before the EAT but accepted that the appellant had raised interesting and important arguments which at least merited consideration by the Court of Appeal. Hence he granted permission to appeal.
- The appellant submits that in fact the EAT misunderstood her argument on X v Y. She was not asking the EAT to depart from it but rather to recognise that this was an exceptional case where Mummery LJ's observations in paragraph 59(4), set out above, were not apposite. Whether HH Judge Serota QC misunderstood the argument or not (and I am not satisfied that he did), it is accepted that nothing in fact turns on it. The focus of the appeal is the decision of the Employment Tribunal and we have to consider the merits of the appellant's argument as to why that decision was wrong.
The statutory provisions.
- The concept of fairness is set out in section 98 of the Employment Rights Act 1996. Sub-section (1) is as follows:
"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
"(a) the reason (or, if more than one, the principal reason) for the dismissal,
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held."
- Sub-section (2) then defines the kind of reasons which will fall within sub-section (1) and includes such matters as misconduct (relied on in this case), lack of capability, retirement and redundancy.
- Sub-Section (4) is the key provision:
"In any case where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably treating it as a sufficient reason for dismissing the employer, and
(b) shall be determined in accordance with equity and the substantial merits of the case."
- As I have said, since its origin in the judgment of Mr Justice Arnold in British Home Stores v Burchell  ICR 303 at 304C-E, the range or band of reasonable responses test has been affirmed in numerous decisions. The most recent valuable summary of the relevant principles is contained in the judgment of Aikens LJ in the Orr case. As regards the fairness test in section 98(4), he summarised the position as follows (para 78):
"…(4) In applying that subsection, the employment tribunal must decide on the reasonableness of the employer's decision to dismiss for the "real reason". That involves a consideration, at least in misconduct cases, of three aspects of the employer's conduct. First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained of; and, thirdly, did the employer have reasonable grounds for that belief. If the answer to each of those questions is "yes", the employment tribunal must then decide on the reasonableness of the response of the employer.
(5) In doing the exercise set out at (4), the employment tribunal must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer has acted within a "band or range of reasonable responses" to the particular misconduct found of the particular employee. If it has, then the employer's decision to dismiss will be reasonable. But that is not the same thing as saying that a decision of an employer to dismiss will only be regarded as unreasonable if it is shown to be perverse.
(6) The employment tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The tribunal must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which "a reasonable" employer might have adopted.
(7) A particular application of (5) and (6) is that an employment tribunal may not substitute their own evaluation of a witness for that of the employer at the time of its investigation and dismissal, save in exceptional circumstances.
(8) An employment tribunal must focus their attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any appeal process) and not on whether in fact the employee has suffered an injustice."
- As that extract makes clear, the band of reasonable responses test does not simply apply to the question whether the sanction of dismissal was permissible; it bears upon all aspects of the dismissal process. This includes whether the procedures adopted by the employer were adequate: see Whitbread plc v Hall  IRLR 275 CA; and whether the pre-dismissal investigation was fair and appropriate: see Sainsbury's Supermarkets v Hitt  IRLR 23 CA.
- There are two important points to note about this test. The first, as the judgment of Aikens LJ makes clear, is that it must not be confused with the classic Wednesbury test adopted in administrative law cases whereby a court can interfere with the substantive decision of an administrator only if it is perverse. This point has been made on a number of occasions. In Post Office v Foley  ICR 1283 the Court of Appeal had to consider the decision of the EAT in Haddon v Van den Bergh Foods Ltd  ICR 1150 in which the EAT had concluded that the band of reasonable responses test subverted the statutory language and required the tribunals to adopt what was in effect a perversity test. Lord Justice Mummery trenchantly observed that this was a misunderstanding, and a dilution, of the proper test (p.1292D):
"It was made clear in Iceland Frozen Foods Ltd. v. Jones  ICR 17 , 25 b-d , that the provisions of section 57(3) of the Employment Protection (Consolidation) Act 1978 (which were re-enacted in section 98(4) of the Employment Rights Act 1996 ) did not require "such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair within the section." The tribunals were advised to follow the formulation of the band of reasonable responses approach instead. If an employment tribunal in any particular case misinterprets or misapplies that approach, so as to amount to a requirement of a perverse decision to dismiss, that would be an error of law with which an appellate body could interfere."
- The band of reasonable responses test is not a subjective test and it is erroneous so to describe it. It provides an objective assessment of the employer's behaviour whilst reminding the employment tribunal that the fact that it would have assessed the case before it differently from the employer does not necessarily mean that the employer has acted unfairly.
- The second observation is that when determining whether an employer has acted as the hypothetical reasonable employer would do, it will be relevant to have regard to the nature and consequences of the allegations. These are part of all the circumstances of the case. So if the impact of a dismissal for misconduct will damage the employee's opportunity to take up further employment in the same field, or if the dismissal involves an allegation of immoral or criminal conduct which will harm the reputation of the employee, then a reasonable employer should have regard to the gravity of those consequences when determining the nature and scope of the appropriate investigation.
- In A v B  IRLR 405, para 60, when giving judgment in the EAT in a case involving alleged criminal behaviour by the employee, I said this:
"Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him."
This dictum was approved by the Court of Appeal in Salford Royal NHS Foundation Trust v Roldan  ICR 1457 para 13.
- The test applied in A v B and Roldan is still whether a reasonable employer could have acted as the employer did. However, more will be expected of a reasonable employer where the allegations of misconduct, and the consequences to the employee if they are proven, are particularly serious.
The grounds of appeal.
- The basic argument of the appellant can be summarised as follows:
(1) Section 3 of the Human Rights Act requires that, where possible, legislation should be construed so as to be in conformity with the requirements of the Convention. Even though the respondent is not a public authority, the Section 3 obligation does not distinguish between legislation governing public authorities and that governing private individuals. Section 98(4) should if possible be read compatibly with Article 8, and the fact that the employee could not directly enforce Convention rights against this respondent employer is immaterial.
(2) The consequences of the dismissal in this case were of a nature and quality to engage Article 8 rights.
(3) Strasbourg authorities establish that respect for Article 8 rights requires the employer to comply with certain procedural safeguards before taking steps that will infringe those rights. This is a necessary part of the Article 8(2) evaluation.
(4) It is for the court to determine whether what is colloquially known as the proportionality test in Article 8(2) is met. This includes being satisfied that fair procedures, including fair and proper investigations, have been adopted.
(5) The Employment Tribunal did not adopt that approach; it simply applied the traditional unfair dismissal test, asking itself whether a reasonable employer could consider that the investigations undertaken were adequate. That is not a sufficiently rigorous evaluation of the fairness of the investigations.
(6) Had the Employment Tribunal adopted the appropriate Article 8 test, it might have reached a different conclusion as to whether the procedures were adequate. If it had concluded that Article 8 had not been complied with, it would have been compelled to find the dismissal unfair.
(7) Hence the decision of the Employment Tribunal should be quashed and the case should be remitted to another tribunal to hear the matter afresh.
- The first step is not in dispute and indeed the principles there set out were specifically accepted by Lord Justice Mummery in X v Y para 59. The employer also accepts that where Article 8 rights are engaged as a result of a dismissal, that will attract a procedural duty to act fairly. However, the employer disputes the other steps in the reasoning. In brief, the employer's response is as follows:
(1) Article 8 rights were not engaged, not least because such adverse consequences as resulted from the decision were brought about by the employee's own conduct.
(2) In any event the band of reasonable responses test provides a sufficiently objective test to satisfy any Article 8 procedural obligation to act fairly, as the Employment Tribunal rightly concluded.
(3) Even if the Article 8 procedural test is more rigorous, any failure by the Employment Tribunal to apply the right test is immaterial in this case since the procedures were manifestly fair and were in accordance with any sensible objective test that could be applied.
(4) It is not, and could not be, contended that dismissal was not a fair sanction once a proper finding of dishonesty had been made.
(5) Accordingly, the dismissal was clearly fair, as the Employment Tribunal found.
- Although a number of issues were canvassed in argument, and we were taken to many Strasbourg and domestic authorities, it seems to me that there are in substance only three issues we have to determine in order to resolve the material differences between the parties. First, did the potential consequences of the dismissal engage Article 8? If not, the appellant falls at the first hurdle. Second, if the Article was engaged, does the band of reasonable responses test, as applied to procedural matters, represent a standard of review compatible with the proper protection of Article 8 rights? If so, again the claim must fail since it is conceded that domestic procedural standards have been met. Third, if Article 8 procedures are more rigorous, can the court be satisfied that the Employment Tribunal would necessarily have found the dismissal to be unfair even if the stricter Article procedural 8 standard had been adopted? If so, the decision should stand. If not, if it cannot confidently be said what the Tribunal would have determined, the matter will have to be remitted to it or another tribunal.
Was Article 8 engaged?
- Article 8 is as follows:
"Article 8 – Right to respect for private and family life
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
- The aspects of private life capable of falling within Article 8 are potentially very wide and the Strasbourg court has, no doubt wisely, been unwilling to define the coverage in an exhaustive way. Indeed, in Niemitz v Germany (1992) EHRR 97 the Court said that it was neither possible nor necessary to define the scope of private life. The Court did, however, conclude (para 30) that "respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings" and that it would extend to activities of a professional or business nature.
- The appellant relies upon three consequences of the dismissal which, she submits, whether taken individually or cumulatively, engage Article 8. These are the damage to her reputation caused by a finding of dishonesty; the potential restriction on her ability to obtain other employment as a consequence of that finding and the stigma flowing from it; and the damage wrought by the dismissal on the social relationships which she had developed with her work colleagues.
- There is no doubt that in an appropriate case each of these interests is in principle capable of engaging Article 8. As to reputation, the European Court of Human Rights observed in Pfeifer v Austria (2009) 48 EHRR 8 (para 35) that:
"a person's reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her private life".
In that case a person had committed suicide as a result of a highly critical article. In Petrenco v Moldova  EMLR 5, another case involving an alleged defamatory newspaper article, the Strasbourg court held that a state's positive obligation to protect Article 8 rights might require it to take steps to protect the right to reputation from interference by private bodies.
- Typically the damage to reputation will result from some publication, but Article 8 is not limited to such cases. The House of Lords has accepted in an employment context that the stigma of removal from a post for allegedly immoral or criminal conduct may, in an appropriate case, engage Article 8: R (Wright) v Secretary of State for Health  1 AC 739. Baroness Hale, with whose judgment Lords Phillips, Hope, Hoffmann and Brown agreed, held that where care workers were entered on a list for alleged misconduct without any right to make representations, the effect of which was to bar them from working in their chosen profession because they were considered unsafe to work with vulnerable adults, their Article 8 rights were infringed. This was partly because of the practical effect on their ability to earn a living, but also because of the inevitable stigma attached to being on the list. This was so even though the list was supposed to be kept private.
- It is also established that the maintenance of relationships with others may be an aspect of Article 8 private rights: see for example Connors v United Kingdom (2005) 40 EHRR 9 at para 82.
- Similarly, the court has held that taking action which jeopardises an individual's right to undertake a range of future employments is, if sufficiently restrictive, enough to engage Article 8 both because of the impact on employment and on social relationships. Wright is an example and there are numerous Strasbourg authorities to similar effect. In Sidabras v Lithuania  42 EHRR 6 ECtHR the applicants both worked for the Lithuanian branch of the KGB prior to independence and were subject, some ten years after independence had been achieved, to significant employment restrictions as a result. In particular they were banned from applying for public positions as well as for numerous private sector posts. The ECtHR said this (para 48):
"The ban has, however, affected the applicants' ability to develop relationships with the outside world to a very significant degree, and has created serious difficulties for them as regards the possibility to earn their living with obvious repercussions on their enjoyment of their private life."
- Mr Galbraith-Marten did not dispute that the damage to reputation resulting from the appellant's dismissal could in principle engage Article 8. He contended that it did not do so here because the appellant had by her own conduct brought the consequence upon herself. That principle applies to the other two interests also but quite apart from that, Mr Galbraith-Marten did not accept that on the facts either the interference with future job prospects or any adverse impact on social relationships was of sufficient gravity to engage Article 8. He submitted that every dismissal has some impact on the employee's ability to associate and interact with former colleagues, yet it would be absurd if that were sufficient on its own to engage Article 8. In this context he referred to the observation of the ECtHR in the case of Friend, The Countryside Alliance and others v UK  50 E.H.R.R. SE6 at para 41:
"…It cannot be said that, because an activity allows an individual to establish and develop relationships, it falls within the scope of Article 8 such that any regulation of that activity will automatically amount to an interference with that individual's private life."
- Mr Galbraith-Marten accepted that where there is a widespread ban on future employment, as in Sidabras or Wright, this might be sufficient to engage Article 8 although he correctly points out that in the Countryside Alliance case Lord Bingham noted that even on the extreme facts of Sidabras, the ECtHR did not find a breach of Article 8 alone but only a breach of Articles 8 and 14 when read together. Counsel submitted that in substance this is the loss of a specific job; even if there is a stigma sufficient to cause some difficulty in obtaining future employment, it is nowhere near sufficient to engage Article 8 on its own.
- Since Mr Galbraith-Marten accepts that but for the submission that the appellant brought the consequences upon herself, Article 8 would be engaged by virtue of the adverse effect on the appellant's reputation, it is strictly unnecessary to determine whether the consequences for future relationships or job prospects would of themselves be sufficient to engage it. I am inclined to think that they would not, although the damage to these interests does reinforce the conclusion that prima facie Article 8 is engaged because of the adverse effect of the dismissal on the appellant's reputation.
- I turn, therefore, to the question whether Article 8 is nonetheless inapplicable because the appellant brought these consequences upon herself.
Article 8 and the employee's own conduct.
- The principle appears to have been first enunciated in the judgment of the court in Sidabras (para 49):
"[Article 8] cannot be relied upon in order to complain of a loss of reputation which is the foreseeable consequence of one's own actions such as the commission of a criminal offence."
- It was reiterated in Mikolajova v Slovakia  Application No 4479/03 although the Court found that it was inapplicable in that case because the applicant was never charged or proved to have committed the wrong-doing whose communication to third parties had caused damage to her reputation. It was not possible to say that she had been the author of her own misfortune.
- The employer also places emphasis on the decision of the court in Kyriakides v Cyprus  Application No 39058/05 ECtHR which again reiterated the Sidabras principle. In that case a senior police officer was dismissed for negligently permitting torture by his subordinates. It was found by the Supreme Court in Cyprus that he had been dismissed in violation of a constitutional right to be presumed innocent. The ECtHR held that his Article 8 rights had been infringed, given the damage to his moral and psychological integrity and reputation. The court repeated the principle that Article 8 cannot be relied upon where the damage to reputation is the foreseen consequence of one's own actions but continued:
"[The court] notes however that the applicant had never been convicted of the commission of the offences in relation to which he had been dismissed. His responsibility in this respect had never been determined or established in criminal, civil or even disciplinary proceedings while the officers under his command had been acquitted of the offences with which they had been charged and the domestic court had found that there had been no case for the defence to answer."
- The implication is that only if responsibility had been determined in any of the three ways identified, namely following criminal, civil or disciplinary proceedings, the employee could properly have been seen as the architect of his or her own wrong. This would preclude any reliance on Article 8.
- In my view, these cases clearly establish the principle relied on by the employer. However, they also confirm that an employee must have been shown to have committed any wrong-doing before the principle can be invoked. Although these cases do not say so in terms, in my judgment logically they would also require that the process leading to that determination has been conducted properly.
Procedural fairness and Article 8.
- There are now numerous Strasbourg cases which have emphasised that an interference with Article 8 rights must satisfy certain procedural standards before the employer can seek to contend that it is lawful under Article 8(2). In McMichael v UK (1995) 20 EHRR 205 para 102, the Commission in its opinion observed:
"While there are no explicit procedural requirements contained in Article 8, the case law of the Commission and Court establish that in this area, where decisions may have a drastic effect on the relations between parent and child and become irreversible, there is particular need for protection against arbitrary interferences. In a case where it was alleged that the local authority had not consulted the parents of a child in its care before taking crucial decisions as to its future, the Court adopted the following approach:
In the Court's view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as 'necessary' within the meaning of Article 8."
- This has been followed in numerous later cases. In Buckley v UK (1997) 23 EHRR 101, para76, the court used the language of fairness, observing that:
"the decision making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8."
- That observation has been cited verbatim in many subsequent decisions including in the more recent case of Turek v Slovakia (2007) 44 EHRR 43 where, after citing the passage in Buckley, the court later added, with respect to Article 8 procedures (para.113) :
"In particular, the Court will examine whether the procedural protection enjoyed by the applicant at the domestic level in respect of his right to respect for his private life under Art.8 of the Convention was practical and effective and consequently compatible with that Article."
- It would be surprising if the jurisprudence were otherwise. It can hardly be a proportionate act to dismiss an employee with consequences which engage Article 8 where the employer has reached the decision in a procedurally unfair manner; and as the court pointed out in McMichael, it cannot then be shown that the dismissal is in pursuance of a legitimate aim. Moreover, as the Strasbourg jurisprudence makes clear – and this is the same under domestic unfair dismissal law – the appropriate procedural safeguards are designed not only to ensure that there are hearings at which the employee has a proper opportunity to meet the case against him, but also to secure that the employer's investigations are conducted fairly.
Bringing the consequences on herself.
- Mr Galbraith-Marten submits that in the light of this Strasbourg jurisprudence, if there is a finding, following a proper and adequate investigation, that the appellant has committed misconduct justifying her dismissal, it follows that she has brought the consequences upon herself and cannot complain that her Article 8 rights are infringed. Article 8(2) does not then come into the picture. It is to be noted that on this analysis, however, the question whether Article 8 rights have been engaged cannot be definitively answered until the fairness of the procedures and the proportionality of the sanction have been determined.
- Ms Williams disputes this analysis. She seeks to limit the principle to situations where the serious wrong doing meriting dismissal has been proven elsewhere or admitted. If Article 8 rights are infringed as a consequence of dismissal and wrong-doing is not conceded, then she submits that Article 8 does not cease to be engaged even where the finding of wrong-doing is established following fair procedures. The proportionality test in Article 8(2) must still be satisfied.
- In my view this is an academic debate. On the employer's case, Article 8 is only excluded once it is shown that dismissal was an appropriate sanction to impose for the misconduct in issue following a fair procedure. But if that is the case, the dismissal will be in accordance with Article 8. Paradoxically, therefore, in order to demonstrate that the employee has brought the consequences upon herself and that Article 8 is not engaged, it is first necessary to show that the principles of Article 8 have been complied with. Whether at that stage the case fails on the grounds that Article 8 was not engaged, or on the basis that it was engaged but the dismissal was justified under Article 8(2) is of no practical significance (although strictly I think that the former is the correct analysis).
Is there a difference between the two tests?
- I turn to what is really the central issue in this case. As I have emphasised, Ms Williams accepted that the Tribunal was entitled in the circumstances to conclude that the investigations that had been carried out were adequate by the standards of domestic unfair dismissal law; a reasonable employer could have been satisfied that no further investigations were required. It follows that if there is no material distinction in the procedural safeguards afforded by the domestic and Convention requirements, her appeal is bound to fail.
- Her contention is that there are differences in the standards required and that a proper application of the Article 8 procedural test would have recognised the potentially grave consequences for the employee resulting from her dismissal; it would have sharpened the employers' obligation to ensure that the most careful investigation was carried out before the appellant was made subject to these consequences. In this case the investigations should have been more thorough than they were. She submitted, moreover, that Article 8 requires a proportionality test to be applied even when assessing whether appropriate procedures had been adopted.
- Ms Williams does not suggest that an employment tribunal would have to assess the evidence for itself, effectively conducting a full re-hearing of all the evidence which had been adduced before the employer and reaching an independent decision on it. She accepts that the tribunal must analyse Article 8 by reference to the findings of the employer. But she relies on the well-established principle of Strasbourg law, recently reaffirmed by the Supreme Court in Manchester City Council v Pinnock  UKSC 45;  3 WLR 1441, that it is for the court to determine whether Article 8 has been infringed or not; it is not enough simply to review on traditional administrative law grounds the assessment of the decision maker. A test which focuses on the conduct of the hypothetical reasonable employer fails to provide the necessary protection.
- I reject this submission. Like Mummery LJ in the case of X v Y (para 59(4)) I find it very difficult to see how a procedure which could be considered objectively fair if adopted by a reasonable employer could nonetheless be properly described as an unfair procedure within the meaning of Article 8. I accept that where Article 8 interests are engaged, matters bearing on the culpability of the employee must be investigated with a full appreciation of the potentially adverse consequences to the employee. But the band of reasonable responses test allows for a heightened standard to be adopted where those consequences are particularly grave. A v B and the Roldan cases exemplify that approach. The assessment of the procedure is made by the tribunal and not the employer, and in making it the tribunal is adopting an objective test of whether the employer has acted as a reasonable employer might do. Accordingly, I see no breach of Article 8.
- That conclusion is strongly reinforced by the fact that in the employment sphere, the Strasbourg court has recognised that some leeway should be given to the employer in the discharge of his powers of dismissal. In Sanchez v Spain (2012) 54 EHRR 24 four applicants before the Court had published two articles, worded in vulgar language, which criticised two fellow employees for giving evidence in favour of the employer in proceedings brought against the employer by the trade union. The articles were published in the workplace. In addition they published a cartoon showing the two employees giving sexual favours to the director of human resources. The applicants were dismissed for serious misconduct. They alleged a breach of their Article 10 rights and also claimed that the real reason for their dismissal was their trade union activities. Their dismissals were found to be justified under Spanish law and their appeal to the Strasbourg Court was unsuccessful. The majority of the Grand Chamber (presided over by Judge Bratza) recognised that disproportionate penalties could conceal anti-union hostility but concluded that the courts had carefully examined the facts and reached a legitimate conclusion taking account of the competing interests at stake. Two passages in the judgment of the court demonstrate that even in the Strasbourg context some deference is paid to the views of the employer. In the part of the judgment setting out the facts, in a section headed "Elements of comparative law", the following observation is made (para. 29):
"Disciplinary authority is one of the essential prerogatives of the employer, whether private or public. In this connection employers have a broad discretion to impose the sanction that they consider the best adapted to the accusations against the employee; the scale of possible sanctions encompasses the power to dismiss a person who has seriously compromised the interests of the company or the public service. In parallel, this power of dismissal is accompanied by a prohibition on dismissing employees on grounds relating to trade-union activity. A measure of dismissal may be based on misconduct or on a legitimate ground. In the first case it relates to a given – identified – form of conduct. In the second, the conduct is considered in general terms."
- The Court returned to the point later in its judgment (para 75):
"Moreover, an examination of the comparative-law material available to the Court reveals that employers generally enjoy broad discretion in determining the sanction that is best adapted to accusations against an employee; the scale of possible sanctions encompasses the power to dismiss a person who has seriously compromised the interests of the company. In the countries examined, the domestic legislation seeks to reconcile the employee's right to freedom of expression with the employer's rights and prerogatives, requiring in particular that a dismissal measure be proportionate to the conduct of the employee against whom it is taken. The homogeneity of European legal systems in this area is a relevant factor in balancing the various rights and interests at stake in the present case."
- Finally, the court observed that in that case:
"the measure of dismissal taken against the applicants was not a manifestly disproportionate or excessive sanction…"
The word "manifestly" of itself suggests that some deference should be paid to the views of management that dismissal is an appropriate sanction.
- Strasbourg therefore adopts a light touch when reviewing human rights in the context of the employment relationship. It may even be that the domestic band of reasonable responses test protects human rights more effectively. Whether that is so or not, Sanchez shows that the interests of the employer are given significant weight when carrying out the balancing exercise which Article 8(2) requires. Sanchez strongly reinforces my conclusion that the band of reasonable responses test provides a sufficiently robust, flexible and objective analysis of all aspects of the decision to dismiss to ensure compliance with Article 8.
- More specifically, I am satisfied that so far as procedures are concerned, the domestic test of fairness does not fall short of the procedural safeguards required by Article 8. In that context, I reject the appellant's submission that the concept of proportionality is either a helpful or relevant one when considering the fairness of the procedures. The Strasbourg court does not use that language when referring to Article 8 procedural safeguards; it uses the language of fairness, a concept universally adopted when speaking of procedures. Recourse to a concept of proportionality – a word not found in Article 8(2) itself – in my judgment simply obfuscates and potentially complicates the essentially simple concept of a fair procedure.
- Since in this case the employee has conceded that the procedures satisfied domestic standards, and given my conclusion that these reflect Article 8 requirements, it follows that the appeal must fail. However, in case I am wrong about that, I will consider the strength of the case on its merits and address the question whether, even if there is a difference between domestic and Strasbourg procedural standards, the adoption of a stricter test might have led to a different conclusion.
The alleged procedural failures in this case.
- The focus of the challenge here is on the investigations carried out by the employer rather than the actual disciplinary hearings themselves. In substance the contention is that the employers failed to check certain important aspects of the evidence which, had they been properly investigated, might have demonstrated the possibility that the statistics relied on to demonstrate dishonesty were distorted and false.
- More specifically, the particular allegations were as follows:
(1) The appellant claimed that sometimes when her machine issued an ANI this was because the machine was temporarily broken. She would return to the back cab and fix the machine. It may be that one of the ticket inspectors (those who inspect tickets and randomly check that passengers have bought tickets) may have sold passengers the appropriate ticket before the appellant had fixed her machine and been able to do so. The appellant submitted that the employers would have been able to show from their records which inspectors were on the appellant's train during various journeys and for what stages of those journeys, and that might have indicated that there were occasions when this had in fact happened.
(2) The appellant contended that she had particular problems with the Avantix machine and was regularly returning to the back cab to fix it.
(3) She contended that it was extremely difficult to manipulate an Avantix machine so as to produce a sufficiently authentic ANI.
(4) She also claimed that the ANIs had not necessarily been retained satisfactorily by the employers and some of her missing ANIs could be ascribed to the fact that they may have been lost after having been returned by her.
- The Tribunal did address each of these matters, all of which were advanced before them. As to the question whether the employers should have investigated the possibility that tickets were provided by inspectors, the Tribunal said this (para 33):
"The explanation for not pursuing this line of enquiry is perfectly satisfactory. It does not constitute a failure on the part of any investigating officer to look for exculpating matters. This is not, of course, any more than a possible means of establishing that at some point an identical ticket to one of the missing ANIs may have been issued by another person, it would not establish that this was in fact a replacement ticket in any particular case nor would it answer the question of why the ANI was missing or go directly to the issue of why the claimant had a disproportionate number of suspicious ANIs."
- With regard to the breaking down of the Avantix machine, these machines were handed out at random and there was no basis to suppose that the appellant would, over a significant period at least, have any more problems with her machine than any other conductor.
- The submission that the ANIs were difficult to reproduce was categorically denied by the employers who carried out tests of their own and concluded that it was easy to do. Again, the Tribunal expressly referred to that fact in its judgment.
- Finally, although there was apparently some evidence to the effect that management processing of the non-issue tickets was unsatisfactory, the tribunal noted that management did not accept that there was the substantial level of non-compliance with procedures alleged by the appellant. Again, even if they had been stored haphazardly, one would have expected the same lackadaisical care to have applied equally to other conductors.
- The striking feature here was that the appellant had 132 ANIs and the next figure was 20. Her total was reduced to 50 by a series of further reductions all of which made assumptions in her favour. But as the Tribunal noted, that did not leave a contrast of 50 to 20 because had similar principles been applied to the other conductors, there is every reason to assume that the figure of 20 would itself have been reduced.
- I have no doubt that the Tribunal was fully entitled to conclude that these investigations were fair and appropriate. There was nothing unfair in failing to undertake the time consuming and difficult exercise of tracking down when the ticket inspectors might have been on the appellant's train given that it would have provided equivocal information at best. Moreover, the possibility would apply equally to the other conductors. The other matters were investigated as thoroughly as could be expected.
- Further, I have doubts whether most of these complaints go to the investigations as such at all. They are directed more specifically to the question whether, in drawing inferences from the statistics, the Tribunal ought to have given greater weight to these possible explanations for the large number of ANIs and ought to have concluded that no adverse inference could confidently be drawn from them. In my view the inference was legitimate and there is no perceptible bias or error in the judgment.
If the test is different, would it have made any difference?
- Even accepting the premise of the appellant's argument that Article 8 imposes higher procedural safeguards than are afforded by domestic law, I am satisfied that nothing turns on that in the circumstances of this case. The focus of the complaint is not on what was done but rather what was not. The employers took on board many of the suggestions for further investigations proposed by the appellant in the course of the disciplinary process and followed them up. The only matter that the employers did not think it appropriate to investigate further was the potential role of the ticket inspectors.
- The Tribunal was persuaded by the cogent explanations of the employers for why that step had not been taken, and I can see no basis on which their analysis on that point can be properly criticised. So I would in any event have dismissed the appeal on the ground that even if the Tribunal had applied the wrong test, it would inevitably have reached the same conclusion had it applied the right one.
- I would therefore dismiss this appeal.
Sir Stephen Sedley:
- For a good many years it has been a source of distress to unfair dismissal claimants that, with rare exceptions, they cannot recanvass the merits of their case before an employment tribunal. In spite of the requirement in s.98(4)(b) that the fairness of a dismissal is to be determined in accordance with equity and the substantial merits of the case, a tribunal which was once regarded as an industrial jury is today a forum of review, albeit not bound to the Wednesbury mast. Other claims – for example discrimination claims – based on the same or related facts, do attract a full merits hearing. But in relation to unfair dismissal the law is unequivocally what Lord Justice Elias has set out in paragraphs 16 to 22 above.
- The appellant's endeavour in the present case is to make an inroad into this situation, not by securing a full merits review but by establishing a second source of applicable law, the European Convention on Human Rights. If article 8 operates through or alongside s.98, the tribunal will have to decide whether the dismissal has involved a breach of the Convention right to respect for private life and, if so, whether the employer's handling of it has been proportionate.
- Lord Justice Elias has described the stages by which Ms Williams QC argues for this model of adjudication and the propositions by which Mr Galbraith-Marten answers her. Like Lord Justice Elias, I would reject Mr Galbraith-Marten's first line of response as question-begging: you cannot blame the claimant for her own dismissal without knowing whether she was guilty, and you cannot know whether she was guilty without ensuring that she has had a fair hearing. But I would accept his second, pivotal, submission that the employer's band of reasonable responses is itself catholic enough to accommodate whatever standard of due process article 8 calls for in a particular case. Since that test is exegetic of the statutory provision, this approach in my judgment fulfils the mandate of s.3 of the Human Rights Act. It requires the tribunal to be satisfied that the employer's standard of inquiry and decision-making was apt, and what is apt will depend, among other things, on the factors spelt out by Ms Williams.
- It should be clearly understood, however, that there is no article 8 watershed – that is to say, no sudden point at which a potential denial of the respect owed to private life raises the procedural stakes and turns a fairness inquiry into a proportionality inquiry. Given that the effect of dismissal on any employee's standing and self-esteem is likely to be considerable even where dishonesty is not alleged, tribunals can be expected to ensure that no dismissal is treated lightly or casually by the employer. From that point on there will be degrees of due process, and I would accept Ms Williams' case that an accusation as serious and complex as the present one stands at or near the top end of these. But, for the reasons given by the tribunal and endorsed by Lord Justice Elias, I accept that this standard has been met.
- What is perhaps more problematical is the question whether, and when, article 8 is "engaged" in this and other unfair dismissal claims. On one view anything which tends to diminish respect for the individual's private life, in the generous sense in which the Strasbourg court construes that phrase, engages article 8(1) and calls for justification under 8(2). But on the view which I prefer, an adjudication which accords proper respect to the individual's personality and capacity for social interaction does not "engage" article 8(1) at all in the sense of disclosing an apparent breach. On this view, the task of the employment tribunal is to invigilate the employment relationship by requiring the dismissal process to conform to a standard of fairness calibrated, among other things, to the grounds and consequences of the threatened dismissal. By this means, which is of a piece with s.98(4), the state complies with its obligation under the Convention and the individual secures the benefit of the Convention right.
Lord Justice Maurice Kay:
- I agree with both judgments.
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