United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS K MONAGHAN (of Counsel) Instructed by: Lesbian & Gay Employment Rights Unit 1G Leroy House 436 Essex Road London N1 3QP
For the Respondent	MR T DE LA MARE (of Counsel) Instructed by: Messrs Bates Wells & Braithwaite Solicitors Cheapside House 138 Cheapside London EC2V 6BB


 


JUDGE PETER CLARK

1. This is an appeal by the Applicant before the Cardiff Employment Tribunal, whose complaint of unfair dismissal brought against the Respondent employer was dismissed by a decision with extended reasons dated 12 July 2002. On 17 July the Registrar made a Restricted Reporting Order by consent. Accordingly we shall refer to the parties simply as Applicant and Respondent in this judgment.

Background

2. The Respondent is a UK-based charity promoting personal development among young people. Of particular relevance is work done by the Respondent in conjunction with local Probation Services aimed at assisting young offenders and those at risk of offending in the 16-25 year age group. The Applicant, who began part-time work with the Respondent in 1998, became full-time in June 2000 in a post funded by the local Probation Service. His duties in that post of Development Officer included liaising with Probation Officers and working with young people on activities which he organised.
3. In early January 2001, whilst off duty, the Applicant pulled into a lay-by where there was a transport café and went to the toilet. There he engaged in consensual sexual activity with a man of about his age whom he had never met before. A Police Officer came into the toilets, which were open to the public and arrested both men for an offence of gross indecency. The Applicant was taken to the Police Station and, instead of being charged, he accepted a caution.
4. The Applicant is homosexual. He had not disclosed his sexual orientation to his family, friends or employer prior to that incident. He chose not to disclose the January incident and subsequent caution to the Respondent.
5. The Respondent learned of the events of January in mid July 2001. The Applicant was promptly suspended and a disciplinary hearing took place on 27 July before the Director of Finance ("D"), who gave evidence before the Employment Tribunal. The Applicant was required to attend that meeting by letter dated 20 July from Personnel which listed the following matters to be considered:

"a) That information has come to hand that suggests you committed a criminal offence in January 2001, the details being that you were cautioned for gross indecency in a public place.

b) That you gave false information in your police report, where you stated that your occupation was a Sports Instructor and that led the Police to believe that you worked with adults only.

c) That you have breached your obligation of mutual trust and confidence to the [Respondent].

d) That your conduct, being the offence of gross indecency in a public place, although outside your employment has fundamentally damaged the employment relationship between you and the [Respondent] as your job involves day to day contact with young persons.

e) That your conduct may bring the [Respondent] into serious disrepute.

f) That taking into account the above points your conduct may constitute gross misconduct."

6. At the disciplinary hearing, which the Employment Tribunal found was fairly-handled, the Applicant read out a statement and submitted letters of support. After consideration D told the Applicant that he could not continue with the Respondent and offered him the opportunity to resign, an offer which the Applicant declined. He was then summarily dismissed without notice on grounds of gross misconduct. The Applicant entered an internal appeal against that decision but later withdrew it.

The Employment Tribunal Decision

7. Before the Employment Tribunal the Applicant's representative, Matthew Bradbury of Lesbian & Gay Employment Rights, addressed an argument to the Employment Tribunal that in dismissing the Applicant there was a breach of his Human Rights under the 1998 Act.
8. The Employment Tribunal dealt compendiously with that submission at paragraph 22 of their reasons thus:

"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 minuitae of whether there is, or is not, compliance with the Human Rights Act. Quite simply X's acknowledgment 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 so strikes us as an acknowledgment by X that he did wrong in withholding that information. Whatever the rights or wrongs of any breach of privacy he acknowledges that he should have done so and chose not to do so."

9. It follows that the Employment Tribunal did not decide this case in the context of the Convention Rights, rather by reference to what may be called ordinary unfair dismissal law.
10. As to that they found, for the purposes of Section 98 Employment Rights Act 1996 (ERA), that the reason for dismissal related to the Applicant's conduct, a potentially fair reason, and that dismissal for that reason was fair in all the circumstances; it fell within the range of reasonable responses open to the Respondent, applying the general orthodoxy reiterated by the Court of Appeal in Foley v Post Office [2000] IRLR 827. In reaching that conclusion the Employment Tribunal took into account the following factors which weighed with the Respondent (reasons paragraph 15); the Respondent, in dismissing the Applicant, was not concerned with his sexual orientation but the fact that he had committed a criminal offence which was (a) not trivial and (b) had a direct bearing on his employment; he had taken a conscious decision not to inform his employer of the offence; the fact of the offence had considerable potential to embarrass the Respondent.

The Appeal

11. This appeal focuses on the interrelationship between the domestic law of unfair dismissal contained, for present purposes, in Section 98 (4) ERA and the effect of the European Convention on Human Rights, scheduled to the Human Rights Act 1998, and in particular Articles 8 and 14 of the Convention. In challenging the Employment Tribunal's decision Ms Monaghan contends that the Tribunal failed to understand the case being advanced on the Applicant's behalf in relation to the application of the HRA; failed to give adequate reasons for rejecting that case and substantively, was wrong to do so. There are also separate heads of perversity within the appeal. It is convenient to begin with the substantive case.

Convention Rights

12. Article 8 provides:

"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."

And by Article 14:

"Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

13. We begin with the pre-HRA learning. Two cases, decided in the EAT, bear some similarity to the facts of the present case. In both Notts County Council v Bowly [1978] IRLR 252 and Wiseman v Salford City Council [1981] IRLR 202, the Applicant employee was, in the course of his duties, involved with young people. Each was convicted of an offence of gross indecency similar to that which this Applicant admitted and for which he was cautioned. Both were dismissed. Those dismissals were held by the EAT to be fair; in the case of Bowly, overturning the majority decision of the Industrial Tribunal.
14. Ms Monaghan submits that the introduction of convention rights into domestic law alters the position as it was when those two cases were decided on the equivalent provision to Section 98 (4) ERA (save for the difference in the burden of proof when Bowly was decided).
15. The first question was whether convention rights can be engaged in the case between private parties. Mr De la Mare submits that, as the Respondent is a private employer, the convention rights are not engaged.
16. In response, Ms Monaghan submits that the scheme of HRA, whilst providing for a free-standing right of action against a public authority (section 7) also has a 'horizontal effect' on conduct between private parties in that a court or tribunal, defined as a public authority (section 6 (3)) is required, so far as it is possible to do so, to read primary and subordinate legislation so as to give effect in a way which is compatible with convention rights. In the present case that requires the Employment Tribunal to read section 98 (4) ERA in a way which is, so far as possible, compatible with Articles 8 and/or 14 ECHR. That is a quite different question from that wrongly identified by the Tribunal at paragraph 22 of their reasons as being whether or not to make a declaration of incompatibility in respect of section 98 (4). Having read the detailed written closing submissions made on the Applicant's behalf below we accept that the case was there put in the way advanced by Ms Monaghan before us. The Applicant did not seek a declaration of incompatibility (something which the Employment Tribunal is not empowered under HRA to make, it not being a court as defined in section 4 (5)); nor did he assert a free-standing right under the Act; he asked the Tribunal to read section 98 ERA in a way compatible with convention rights.
17. Mr De la Mare accepts that in an appropriate case section 98 (4) ERA must be interpreted, so far as is possible, compatibly with Convention Rights, including Articles 8 and 14. That does not mean effectively implying a term into every contract of employment that every private employer is bound to comply with Article 8 and/or 14 ECHR. The question is whether there is a potential incompatibility before applying the section 3 HRA purposive interpretation techniques set out in the judgment of Lord Woolf CJ in Poplar Housing and Regeneration Community Association Ltd v Donohue [2002] QB 48, paragraph 75.
18. To this extent we detect no real difference in approach between Counsel and thus we move to what seems to us to be the main battleground in this appeal. Is there any potential breach of Articles 8 and/or 14 ECHR on the particular facts of the present case?
19. We heard submissions as to whether Article 14, the prohibition on discrimination, operated independently of other Convention Rights. In fact, a measure of agreement was reached between Counsel by reference to the European Court and domestic cases. The high water-mark, as Mr De la Mare put it, may be found in Thlimmenos v Greece (Application No 34369/97) on which Ms Monaghan particularly relied. There the Applicant, a Greek citizen and Jehovah's Witness, refused to wear military uniform on the ground of his religious beliefs. As a result he was convicted of a criminal offence and sentence to a term of imprisonment. As a result of that conviction he was refused appointment by a public authority to a post of Chartered Accountant. He complained to the court in Strasbourg that such refusal breached Articles 9 and 14 of his Convention Rights. Article 9 (1) provides for the right to freedom of thought, conscience and religion, subject to the limitations contained in Article 9 (2).
20. The judgment of the court in that case (paragraphs 42-43) makes clear that the question is not whether a breach of Article 9.1, an interference with his religious rights, had been made out, but whether the fact that the criminal offence of which he had been convicted, refusal to wear military uniform, was prompted by his religious beliefs and thus fell within the ambit of the convention provision (Article 9). The court found that it did and thus the prohibition on discrimination under Article 14 was engaged. Their conclusion was that there had been a violation of Article 14 taken in conjunction with Article 9 (paragraph 49).
21. That approach has been endorsed by the Court of Appeal in Mendoza v Ghaidan [2002] EWCA Civ 1533, a Landlord and Tenant case involving less favourable treatment of men in a same-sex relationship compared with heterosexual couples under the provisions of the Rent Act 1977, Schedule 1, paragraphs 2, 3, so far as succeeding to a tenancy after the death of one partner was concerned. Buxton LJ observed (paragraph 9):

"An uninformed reading of the bare words of that provision [Article 14] might suggest that a complainant had to establish an actual breach of another article of the Convention before he could rely on Article 14. Jurisprudence has however established that that is not so. As it is put in Grosz, Beatson and Duffy, Human Rights [2000], paragraph C14-10:

"It would appear, however, that even the most tenuous link with another provision in the Convention will suffice for Article 14 to enter into play."

22. Pausing there, we are satisfied that the prohibition on discrimination contained in Article 14 extends to discrimination on the grounds of sexual orientation. See e.g. Smith and Grady v UK [1999] IRLR 231; Salgueiro da Silva Mouta v Portugal [2001] 1 FCR 653.
23. Thus, the critical question, it seems to us, is whether, on its facts, the present case falls within the ambit of Article 8.1, the right to respect for private and family life, and Article 14.
24. We deal first with the line of authority in the European jurisprudence which bears on discrimination based on sexual orientation which, subject to justification under Article 8.2, interferes with a person's right to respect for his private and family life.
25. In Smith & Grady the MoD operated a policy that homosexuality was incompatible with service in the UK armed forces; service personnel known to be homosexual or who engaged in homosexual activity were administratively discharged from the armed forces. Jeannette Smith and Graeme Grady were discharged pursuant to that policy and challenged their discharge before the Court at Strasbourg on the grounds that investigations into their homosexuality and their discharge from the Royal Air Force on the sole ground that they were homosexual constituted violation of Articles 8 and 14 ECHR.
26. The UK Government accepted that there had been interferences with the Applicants' right to respect for their private lives but sought to justify it under Article 8.2. The plea of justification failed. A violation of Article 8 had occurred (paragraph 112). The complaint of a violation of Article 14 in conjunction with Article 8 was found to give rise to no separate issue over and above that raised by the Article 8 complaint (paragraph 116).
27. In Mouta a contact dispute arose between the Applicant father and his wife from whom he was separated. Following that separation he began living with another man. The contact dispute came before the Lisbon Court of Appeal which pronounced that custody of young children should generally be awarded to the mother unless there were overriding reasons to the contrary and that in any event custody of the child of this family would still be awarded to the mother as the child should live in a traditional Portuguese family; the Court found that homosexuality was an abnormality and that children should not grow up in the shadow of abnormal situations.
28. On the Applicant's complaint that the judgment of the Court of Appeal amounted to an unjustifiable interference with his right to respect for family life under Article 8 and was unjustifiably discriminatory treatment on grounds of his sexual orientation under Article 14, the Court found a violation of Article 8 taken in conjunction with Article 14.
29. In ADT v UK [2000] 9 BHRC 112, the Applicant was a practising homosexual. Following a search of his home by police he was arrested and taken to a police station. A further search of his house revealed video tapes which show the Applicant and 4 other adult men engaged in sexual activities together at his home. He was charged with an offence of gross indecency between men contrary to section 13 of the Sexual Offences Act 1956 (the offence for which the Applicant was cautioned in the present case).
30. Section 13 of the 1956 Act provides:

"It is an offence for a man to commit an act of gross indecency with another man, whether in public or in private …"

31. The Sexual Offences Act 1967 introduced a qualification to the legislation regulating male homosexual conduct. Acts in private between consenting adult men were no longer an offence, but such acts shall not be treated as done in private if done (a) when more than two persons take part or are present or (b) in a lavatory to which the public have or are permitted to have access. Accordingly the Applicant was guilty of an offence under section 13 of the 1956 Act. Although he had engaged in homosexual activity in his own home, because more than two people took part or were present the acts were deemed by statute not to have taken place in private.
32. The European Court held (paragraph 37) that the acts in which the Applicant engaged with his friends were genuinely 'private'. There was a violation of Article 8. It was unnecessary to consider Article 14, following Dudgeon v UK [1981] 4 EHRR 149.
33. Pausing here, it is pertinent to recall the pre-HRA decision of the EAT in Saunders v Scottish National Camps [1980] IRLR 174. There, the Applicant, employed as a handyman at the Respondent's children's camp, was dismissed on the grounds that the Respondent had learned that he 'indulged' in homosexuality, rendering him totally unsuitable for employment in a camp accommodating schoolchildren and teenagers. The EAT (Lord McDonald MC presiding) upheld an Industrial Tribunal decision that dismissal on the grounds of the Applicant's homosexual activities was fair. That was some other substantial reason for dismissal, a potentially fair reason under what is now section 98 (1) (b) ERA. The Employment Tribunal had adopted the test of the reasonable employer in reaching their conclusion. The range of reasonable responses test was applied.
34. In the post-HRA era cases such as Saunders may require revisiting. Arguably, in the absence of any suggestion of a real risk to children or a relevant criminal offence, to which we shall shortly return, the dismissal in Saunders case interfered with his Article 8.1 right. Arguably, the case fell within the ambit of Article 8.1. In these circumstances we see a potential line of enquiry by an Employment Tribunal leading to the question of how section 98 (4) should be interpreted, so far as possible in a way compatible with Convention Rights and whether the domestic interpretation of that statutory provision itself requires re-appraisal. However, we are not persuaded that such a course is called for on the particular facts of our case for the reasons which follow.
35. Based on the cases referred to earlier, and the observation, made obiter by Hale LJ in Pearce v Governing Body of Mayfields School [2001] IRLR 669, paragraph 15, that "sexual behaviour is undoubtedly an aspect of private life, indeed a most intimate and important aspect of private life," Ms Monaghan approaches the principal issue in the appeal in this way.
36. The criminal offence for which the Applicant was cautioned was causally linked to his sexuality. The offence consists of sexual activity between men only. It is uniquely criminalised by the Sexual Offences Act 1957 and 1967; there is no equivalent offence for heterosexual or lesbian acts. In its present form, what has been colloquially described in argument as "cottaging" is artificially deemed to be an offence in public by the provisions of Section 1 (2) (b) of the 1967 Act. In truth, apart from the Police Officer on duty to intervene in just these circumstances, the activity engaged in by the Applicant and another in January 2001 was, to all intents and purposes, a genuinely private act.
37. Since it was the Applicant's sexuality leading to the offence which in turn led to his dismissal, this case falls within the ambit of Article 8.1 in conjunction with Article 14 thus triggering the process of interpretation, not undertaken by this Employment Tribunal, outlined by Lord Woolf in Donohue.
38. Further, in relation to Article 14, thus engaged, Ms Monaghan submits that the decision to dismiss in this case revels homophobic undercurrents, to be seen from the Respondent's reference to a degree of public opprobrium still attached to this offence (evidence of D. witness statement paragraph 13) and the reference in the Respondent's suspension letter of 20 July 2001 to his job involving day to day contact with young persons. It is a clear case of discrimination on grounds of sexual orientation.
39. We do not accept these submissions. Dealing first with the question of privacy, Article 8 is concerned with the right to respect for private (and family) life. The cases of Smith & Grady and Mouta exemplify that principle applied in practice. ADT is relied on by Ms Monaghan showing that it is permissible to look, in the case of a criminal offence by statute, behind the deeming provision to enquire whether the particular acts took place 'genuinely' in private or in public. We distinguish the facts of that case. Plainly the acts took place in the privacy of the Applicant's home. They were excluded from the 'private' exemption due to their being more than two persons involved. That has nothing to do with the public/private divide in any meaningful understanding of those words.
40. We think that the offence known as 'cottaging' falls on the other side of that dividing line. The offence here took place in toilets to which the public had access. The activities in which the Applicant engaged were 'genuinely' in public, to paraphrase the Court in ADT. We derive some assistance in arriving at that conclusion from the judgment in Theakston v MGN Ltd [2002] EWHC 137 (QBD. Ouseley J). True it is, as Ms Monaghan points out, that that case was concerned with the grant or refusal of an interlocutory injunction against the Defendant newspaper publisher, restraining publication of photographs of the claimant, a media presenter, engaged in a sex act with a female prostitute. It is also pointed out that the Judge in that case was concerned with competing rights to privacy of the individual on one hand and on the other the Defendant's right to freedom of expression under Article 10. Nevertheless, we adopt the Judge's rejection of the claimant's argument that all sexual relations should be regarded as private.
41. Just as in that case, on the scale of circumstances that should be protected from disclosure, a transitory engagement with a prostitute in a brothel was far removed from sexual activity in private homes, so in the present case we are not persuaded that transitory sexual encounters between consenting male adults in public lavatories fall within the right to respect for private life enshrined in Article 8.1 of the Convention.
42. It follows from that finding that Article 14 is not properly engaged in this case; however, even if it were, we return to the facts. We reject Ms Monaghan's submission that the Respondent's decision to dismiss reflected, in whole or in part, discriminatory treatment based on the Applicant's sexual orientation. The Tribunal expressly found as a fact, based on D's evidence, that the Applicant's sexuality was not an issue in that decision (reasons paragraph 15). In his closing submissions to which we have referred a manuscript note was added by Mr Bradbury to the typed submissions which read:

"We accept Mr [D]'s evidence that the dismissal was not motivated by homophobia."

43. Mr Bradbury went on to take issue with Mr D on the question whether the issue was one of sexuality; an issue which the Tribunal finally resolved in the Respondent's favour.
44. In these circumstances we have concluded that, as the Tribunal found, the interpretation of section 98 (4) ERA fell to be carried out by reference to ordinary Foley principles. Even if, in an appropriate case, it may in future be necessary to reach an interpretation compatible with Convention Rights properly engaged which in some way differs from the Foley approach, this is not such a case on its facts.
45. Ms Monaghan's submission to the effect that the Tribunal's reasons were not 'Meek-compliant', to use Sedley LJ's expression in Tran v Greenwich Vietnam Community [2002] IRLR 735, paragraph 17, in dismissing the Human Rights argument below has some force. However, for the reasons which we have endeavoured to explain we are satisfied that their conclusion, that the interpretation of section 98 (4) ERA was not affected by considerations of Convention compatibility, was 'plainly and unarguably right'on the facts of the case. See Dobie v Burns International [1984] ICR 812. Accordingly we shall not allow the appeal on that ground.
46. That disposes of the principal issues in this case. However, Ms Monaghan also addressed argument to us (a) that, applying the ordinary Foley principles, this decision was perverse and (b) whether a particular finding by the Tribunal was perverse, in the sense that it was a finding unsupported by or contrary to the evidence which was before the Tribunal. We shall take each of those submissions in turn.
47. First, general perversity. Ms Monaghan submits that in applying the band of reasonable responses test the Tribunal should apply the standard of the reasonable employer and not the (homophobic) bigot. That somewhat emotive way of putting the case for the Applicant suffers from the clear finding of fact by the Tribunal to which we have earlier referred. The decision to dismiss is this case was not taken on the grounds of the Applicant's sexuality. Thus the standard to be applied and which we are satisfied was applied by this Employment Tribunal is the standard of the reasonable employer who, disregarding the employee's sexuality, was faced with an employee 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.
48. In these circumstances, notwithstanding the good work and success achieved by the employee during his employment in that position, can it be said, on appeal, that no reasonable Employment Tribunal, properly directing itself, could have concluded that dismissal fell within the range of responses of reasonable employers, some of whom might dismiss, others who might not?
49. That is the question presently posed to us. We answer that question unhesitatingly in the negative.
50. Finally, what is said to be a perverse finding of fact. At paragraph 18 of their reasons the Employment Tribunal say:

"It is quite clear that from May onwards when he realised that he should have said something to his employers that he did not. It was this non-disclosure that made the matter so very serious as far as the Respondent saw the case."

51. Ms Monaghan has taken us to passages in the evidence, first in the Applicant's witness statement paragraph 23 and the Chairman's notes of his cross-examination (paragraph 14) and submits that the Tribunal misunderstood the evidence which the Applicant gave. It was not that he realised in May 2001 that he should disclose the police caution to his employer, the Respondent; rather that after his suspension in July he then understood, from a friend in the Probation Service, that in future it would be necessary for him to disclose that fact to any new employer.
52. In our judgment this submission highlights the danger of subjecting Tribunal's reasons to minute examination. It is also material to note that in evidence the Applicant accepted that the caution was relevant to his job but he did not have the opportunity to tell his Line Manager, perhaps inferring that if he had had the opportunity he would have taken it. However the Tribunal (reasons paragraph 18) did not accept the Applicant's evidence that he had no opportunity to tell his Line Manager. That finding is also material to the Tribunal's final conclusion in paragraph 18 that non-disclosure made the matter so very serious in the Respondent's eyes.
53. Our conclusion is that the Tribunal was entitled to find that a relevant, not determinative factor, in the Respondent's decision to dismiss was the Applicant's non-disclosure, and that, with the other factors to which we have adverted, placed this dismissal within the band of reasonable responses open to the employer.
54. It follows, for the reasons which we have given, that this appeal fails and is dismissed.