COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL
Strand, London, WC2A 2LL
B e f o r e :
(VICE PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION))
LORD JUSTICE MUMMERY
LORD JUSTICE DYSON
|- and -
(instructed by Liberty, 21 Tabard Street, London SE1 4LA) for the Appellant.
MR THOMAS DE LA MARE
(instructed by Messrs Bates Wells & Braithwaite Solicitors, Cheapside House, 138 Cheapside, London EC2V 6BB)
for the Respondent.
Hearing dates : 8th and 9th March 2004
Crown Copyright ©
Lord Justice Mummery :
"This appeal raises the important question whether the current test of "fairness" as provided for in Post Office v. Foley  IRLR 827 can now be regarded as correct as a matter of law where a Convention right is engaged by the dismissal complained of."
"This is a case that raises important issues about the "horizontality" of the Human Rights Act 1998…and about the extent of positive obligations owed by the state to protect an individual's private life from unjustified interference by private persons, including employers."
Decision of Employment Tribunal
"22. X suggests that in dismissing him for this offence this breaches the Human Rights Act. X has to understand that there are no stand alone headings of claim which can be brought under the Human Rights Act in the Employment Tribunal. In any event this court does not have the jurisdiction to make any declaration of incompatibility. In this particular case the tribunal have taken the view that we do not have to go into the minutiae of whether there is, or is not, compliance with the Human Rights Act. Quite simply X's acknowledgement that he should have told his employers of his involvement in this offence and the caution that he received and chose not to do so even after May when he knew that he should have done strikes us as an acknowledgement by X that he did wrong in withholding that information. Whatever the rights and wrongs of any breach of privacy he acknowledges that he should have done so and chose not to do so."
The Employment Appeal Tribunal
"…who (a) was employed in a position which required him to lead by example and in co-operation with the local Probation Service, youngsters who were already young offenders or who were at risk of offending; to that extent he was something of a role model; (b) had committed a criminal offence, which he accepted was relevant to his employment and (c) had chosen not to disclose that fact to his employer."
The HRA Point:
A. The Opposing Submissions
B. The Relevant Law
" 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 enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(3) In this section "public authority" includes-
(a) a court or tribunal,…."
"(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, and(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.
(2) A reason falls within this subsection if it-(a) [Not applicable]
(b) relates to the conduct of the employee.
(4) Where the employer has fulfilled the requirements of subsection (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 in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case."
C. The Scope and Applicability of Article 8
" so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which the question has arisen."
"15. Sexual behaviour is undoubtedly an aspect of private life, indeed a most intimate and important aspect of private life. Any interference by the state can only be justified under article 8(2)."
"17. Even without any positive obligation, it is evident that that respect goes further than simply refraining from interference with what goes on in the privacy of the home."
"56. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. The Article also protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world…..There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of "private life."
57. There are a number of elements relevant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, though not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example a security guard viewing through closed circuit television) is of a similar character…"
"The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference since it may also give rise to positive obligations inherent in effective "respect" for private and family life. While the boundaries between the State's positive and negative obligations under this provision do not always lend themselves to precise definition, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State enjoys a certain margin of appreciation…
The positive obligations under Article 8 of the Convention may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves…Since the concept of respect is not precisely defined, States have a wide margin of appreciation regarding the choice of the means to be employed to discharge the obligations set forth in the relevant legislation.
The Court has held that a State has obligations of this type where it has found a direct and immediate link between the measures sought by an applicant and the latter's private and/or family life…It points out that in the Botta judgment it held that Article 8 of the Convention was not applicable to situations concerning interpersonal relations of such broad and indeterminate scope that there could be no conceivable direct link between the measures the State was urged to take and the applicant's private life."
D. The Impact of the HRA on the ERA
"In some cases that obligation [referring to the s3 obligation to construe legislation compatibly with Convention rights] will not affect the outcome, since Convention rights are, in their origin and meaning, only exigible against the state. That difficulty does not however arise in respect of article 14, since in its terms it imposes on the state not merely a duty to refrain from certain conduct in relation to its citizens, but also a positive obligation to "secure" to those citizens the enjoyment of Convention rights without discrimination. Accordingly, in construing the Schedule in the context of article 14 we have to ask whether that legislative act, construed in domestic law as it was in Fitzpatrick's case, does indeed secure to citizens the relevant freedom from discrimination."
"Strasbourg jurisprudence has recognised that in certain instances there may be a positive obligation on the state to secure the observance of such rights. Article 8 has been one of those instances: see X and Y v. The Netherlands (1985) 8 EHRR 235, 239-240."
The short answer
The longer answer
The cause of action
(1) The only cause of action asserted by the applicant was under s 94 of the ERA: he had a right not to be unfairly dismissed by the respondent. He was entitled to have that claim determined by the employment tribunal in accordance with the provisions of Part X of the ERA, as authoritatively interpreted by the courts in cases such as Foley.
(2) The applicant did not assert any cause of action against the respondent under the HRA. He does not have an HRA cause of action. The respondent is not a public authority within s 6 of the HRA. It was not unlawful under s6 of the HRA for the respondent, as a private sector employer, to act in a way which was incompatible with article 8.
(3) For the same reason as in (2) the applicant was not entitled to bring proceedings against the respondent under s7 of the HRA for acting in a way which is only made unlawful by s6 of the HRA in the case of public authorities.
The Convention perspective: the positive obligations of the state
(1) As appears from the authorities cited in section C above, article 8 is not confined in its effect to relations between individuals and the state and public authorities. It has been interpreted by the Strasbourg court as imposing a positive obligation on the state to secure the observance and enjoyment of the right between private individuals.
(2) If the facts of the case fall within the ambit of article 8, the state is also under a positive obligation under article 14 to secure to private individuals the enjoyment of the right without discrimination, including discrimination on the ground of sexual orientation.
(3) A person's sexual orientation and private sex life fall within the scope of the Convention right to respect for private life (see ADT v. UK  2 FLR 697) and the right to non-discrimination in respect that right. Interference with the right within article 8.1 has to be justified under article 8.2.
(4) What is "private life" depends on all the circumstances of the particular case, such as whether the conduct is in private premises and, if not, whether it happens in circumstances in which there is a reasonable expectation of privacy for conduct of that kind.
Reason for dismissal
(1) If the dismissal of the applicant was for his "private" conduct, that will be relevant to the determination by an employment tribunal under s98 of an unfair dismissal claim against the employer, whether or not the employer was a public authority. In either case the tribunal has to decide whether the dismissal for that reason was a sufficient reason for the dismissal and was fair.
(2) If the dismissal of the applicant was in circumstances falling within article 8 and was an interference with the right to respect for private life, it might be necessary for the employment tribunal then to consider whether there was a justification under article 8.2 for the particular interference. As explained below, article 8 and article 14 may have to be considered by tribunals in the case of a private sector employer, as well as in the case of a public authority employer, by virtue of s3 of the HRA. Justification involves considering whether the interference was necessary in a democratic society, the legitimate aim of the interference, and the proportionality of the interference to the legitimate aim being pursued.
(3) On questions of justification the tribunal should bear in mind the complexity of employment relationships. In addition to the right of the employee under article 8 and article 14, the employer, fellow employees and members of the public also have rights and freedoms under the Convention.
The relevance of s3 HRA in private employer cases
(1) Under s 3 of the HRA the employment tribunal, so far as it is possible to do so, must read and give effect to s98 and the other relevant provisions in Part X of the ERA in a way which is compatible with the Convention right in article 8 and article 14.
(2) Section 3 of the HRA applies to all primary legislation and subordinate legislation. That includes the ERA and the rules of procedure in the Employment Tribunal Regulations 2001. Section 3 draws no distinction between legislation governing public authorities and legislation governing private individuals.
(3) The ERA applies to all claims for unfair dismissal. s98 of the ERA draws no distinction between an employer in the private sector and a public authority employer.
(4) In many cases it would be difficult to draw, let alone justify, a distinction between public authority and private employers. In the case of such a basic employment right there would normally be no sensible grounds for treating public and private employees differently in respect of unfair dismissal, especially in these times of widespread contracting out by public authorities to private contractors.
(5) If, for example, the applicant in this case had been an employee of the Probation Service, he could have brought an unfair dismissal claim against it and, as it is a public authority, he would also have been entitled under s6 of the HRA to rely directly on article 8, if the facts had fallen within its ambit. If the employment tribunal only had to consider article 8 and article 14 where the employer was a public authority within s 6 of the HRA, a surprising situation would have arisen in a case such as this: the applicant's unfair dismissal claim might be determined differently according to whether his employer was in the private sector, working closely with the Probation Service, or was a public authority, such as the Probation Service itself. It is unlikely that the HRA was intended to produce different results.
The employment tribunal as a public authority
(1) The employment tribunal is itself a "public authority" within s 6(2) of the HRA.
(2) Section 6(1) makes it unlawful for the tribunal itself to act in a way which is incompatible with article 8 and article 14.
(3) Those features of s6 do not, however, give the applicant any cause of action under the HRA against a respondent which is not a public authority. In that sense the HRA does not have the same full horizontal effect as between private individuals as it has between individuals and public authorities.
(4) The effect of s6 in the case of a claim against a private employer is to reinforce the extremely strong interpretative obligation imposed on the employment tribunal by s3 of the HRA. That is especially so in a case such as this, where the Strasbourg court has held that article 8 imposes a positive obligation on the state to secure the enjoyment of that right between private individuals. Article 14 also imposes that positive obligation in cases falling within the ambit of article 8.
Interpretation and compatibility of s98 ERA with articles 8 and 14
(1) In discharging its duty under s3 of the HRA to read and give effect to s 98 of the ERA in a way which is, so far as it is possible, compatible with article 8, the employment tribunal will be well aware that s98 does two things: (a) it identifies reasons on which an employer is permitted to rely to justify a dismissal and (b) it sets the general objective standards to be applied by the employment tribunal in determining whether the dismissal was fair or unfair.
(2) That question of fairness depends on whether, in all the circumstances, the employer acted reasonably or unreasonably in treating the reason (eg. conduct) as a sufficient reason for the dismissal and on the equity and substantial merits of the case.
(3) Lord Woolf pointed out, in giving the judgment of the court in Poplar Housing and Regeneration Community Association Ltd v. Donoghue  QB 48 at para 75, that"(a) unless the legislation would otherwise be in breach of the convention s3 can be ignored (so courts should always first ascertain whether, absent s3, there would be any breach of the convention; (b) if the court has to rely on s3 it should limit the extent of the modified meaning to that which is necessary to achieve compatibility; (c) s3 does not entitle the court to legislate (its task is still one of interpretation, but interpretation in accordance with the direction in s3)…"
(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?
(5) In general, the reasonable expectation is that a decision that a dismissal was fair under s98 would not be incompatible with article 8 or article 14. There would be no need to invoke s3 in order to achieve a result compatible with article 8 and 14. In such cases s3 can be ignored.
(6) There may, however, be cases in which the HRA point could make a difference to the reasoning of the tribunal and even to the final outcome of the claim for unfair dismissal. I shall now consider the possible application and effect of s3 of the HRA in such cases.
(7) As explained earlier, a dismissal for a conduct reason may fall within the ambit of article 8. A reason for a dismissal is " a set of facts known to the employer or beliefs held by him which cause him to dismiss the employee" Abernethy v. Mott Hay  ICR 323. The relevant set of facts may relate to the employee's private life. Take, by way of example, an extreme case involving the more straightforward position of a public authority employer. An employee of a public authority is dismissed for eating cake at home or in his lunch break at work. That is the set of facts constituting the conduct of the employee within s 98(2)(b) of the ERA. The decision to eat cake is, in general, a private one. It is difficult, though not impossible, to conceive of a justification under article 8.2 for the employer's interference with respect for private life by dismissal for that reason. It is possible that in some circumstances the interference with a person's right to eat cake is necessary, legitimate and proportionate.
(8) In the case of a public authority employer, who is unable to justify the interference, the dismissal of the employee for that conduct reason would be a violation of article 8. It would be unlawful within ss6 and 7 of the HRA. If the act of dismissal by the public authority is unlawful under the HRA, it must also be unfair within s98, as there would be no permitted (lawful) reason in s 98 on which the public authority employer could rely to justify the dismissal. In that case no question of incompatibility between s98 and the Convention right would arise.
(9) Taking the same set of facts, save for the substitution of a private sector employer, it would not be unlawful under the HRA for the private employer to dismiss the employee for eating cake, as a private employer is not bound by the terms of s6 of the HRA not to act incompatibly with article 8. It is, however, difficult to conceive of a case, in which the unjustified interference with respect for private life under article 8 (by dismissal for eating cake) would not also be an unfair dismissal under s98. Put another way, it would not normally be fair for a private sector employer to dismiss an employee for a reason, which was an unjustified interference with the employee's private life. If that is right, there would, in general, be no need for an applicant to invoke article 8 in order to succeed on the unfair dismissal claim and there would be no question of incompatibility between s98 of the ERA and article 8 to attract the application of s3 of the HRA.
(10) If, however, there was a possible justification under s98 of the dismissal of the cake-eating employee, the tribunal ought to consider article 8 in the context of the application of s 3 of the HRA to s 98 of the ERA. If it would be incompatible with article 8 to hold that the dismissal for that conduct reason was fair, then the employment tribunal must, in accordance with s3, read and give effect to s98 of the ERA so as to be compatible with article 8. That should not be difficult, given the breadth and flexibility of the concepts of fairness used in s98.
(11) As already indicated in the short answer, no question of incompatibility in fact arises in this case, whether the employer is a public authority or in the private sector. On the facts found by the employment tribunal the case does not fall within the ambit of article 8. Issues of incompatibility with article 8 and article 14 do not arise. There is no obligation to apply s3 or s 6 of the HRA. The employment tribunal was entitled to conclude that it "did not have to go into the minutiae of whether there is or is not compliance with the Human Rights Act" i.e. whether there was justification or incompatibility.
F. Discriminatory Offence
(1) Do the circumstances of the dismissal fall within the ambit of one or more of the articles of the Convention? If they do not, the Convention right is not engaged and need not be considered.
(2) If they do, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons? If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer.
(3) If it does, is the interference with the employee's Convention right by dismissal justified? If it is, proceed to (5) below.
(4) If it is not, was there a permissible reason for the dismissal under the ERA, which does not involve unjustified interference with a Convention right? If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.
(5) If there was, is the dismissal fair, tested by the provisions of s98 of the ERA, reading and giving effect to them under s3 of the HRA so as to be compatible with the Convention right?
Lord Justice Dyson:
"Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy."
"[Art 8] also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with other, even in a public context, which may fall within the scope of "private life"" (emphasis added).
This is the widest statement of the ambit of privacy expectations to which our attention was drawn. But even Peck does not support the proposition that, subject only to article 8.2, a person has an untrammelled right under article 8.1 to give expression to his or her sexuality in public.
"59….Whilst the degree of intimacy is a very relevant factor, it cannot be taken in isolation from the relationship within which the physical intimacy occurs and from the other circumstances particularly the location….
60. Sexual relations within marriage at home would be at one end of the range or matrix of circumstances to be protected from most forms of disclosure; a one night stand with a recent acquaintance in a hotel bedroom might very well be protected from press publicity. A transitory engagement in a brothel is yet further away."
Lord Justice Brooke:
"Decision to caution
A formal caution is a serious matter. It is recorded by the police; it should influence them in their decision whether or not to institute proceedings if the person should offend again; and it may be cited in any subsequent court proceedings. In order to safeguard the offender's interests, the following conditions must be met before a caution can be administered. There must be evidence of the offender's guilt sufficient to give a realistic prospect of conviction; the offender must admit the offence."