Wed 05 Mar 2014

UK unfair dismissal law: engaging the European Convention of Human Rights

Although the view could be taken that there has been a shift towards a more employer friendly approach to employment law, evidenced, for example, by the increase in the period of qualifying service required for raising an unfair dismissal claim from one year to two years, employers have traditionally voiced concerns over the continual introduction of new national employment legislation, usually bringing with it increased employment rights for employees.

However, in addition to this there is a further overarching layer of rights that may be engaged under the European Convention on Human Rights (the "ECHR"). This could be a troubling thought for employers seeking to dismiss an employee as they have not only national laws to comply with, but also potentially European laws. The majority of the ECHR is given effect in the Human Rights Act 1998 which came into force in October 2000. The Human Rights Act provides that, so far as possible, UK legislation should be interpreted and given effect to in a way that is compatible with the ECHR.

This article examines recent case law which highlights the circumstances in which employers will require to take into account European law, with a particular focus on Articles 6 and 8 of the ECHR.

Article 6 - right to a fair hearing

Article 6 of the ECHR states that, "in the determination of civil rights and obligations or of any criminal charge, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

Cases involving a dispute over the right to representation may bring into play Article 6. It is clear from the cases of R (on the application of G) v Governors of X School and another [2011] IRLR 756 and Mattu v University Hospital of Coventry and Warwickshire NHS Trust [2012] IRLR 661 that Article 6 may be engaged in the context of an employer's disciplinary procedure if it is determinative of the civil right to practice a profession or if the procedure has a "substantial influence and effect" on later proceedings that will make such a determination.

The case of R (on the application of G) v Governors of X School and another involved a teacher who had been accused of having an inappropriate relationship with a child. The teacher argued that the employer's refusal to allow him legal representation violated his Article 6 rights. The Supreme Court held that when examining the right to representation the test was whether the disciplinary proceedings would have "a substantial influence or effect" on the determination of the teacher's civil right (namely, the right to practise his profession) by the Independent Safeguarding Authority (ISA). It held by a majority that this test was not met as it concluded that the ISA would exercise its judgment independently in relation to fact finding and assessing the appropriate outcome. As a consequence, Article 6 was not engaged in the disciplinary proceedings and there was therefore no right to legal representation.

The Court of Appeal in the Mattu case also considered this test as laid down by the Supreme Court. It held that the "substantial influence test" was not met in this case, which involved disciplinary proceedings against a doctor. The reasoning behind this was that it considered an employment tribunal hearing an unfair dismissal claim and also the General Medical Council's Fitness to Practise Panel would all be in a position to independently review the evidence and draw their own conclusions, notwithstanding the decision reached by the employer. In light of these two cases, it is clear that the circumstances where it could be successfully argued that Article 6 is engaged and there is a right to legal representation are limited.

It is also important to note that even if Article 6 is engaged this will not necessarily mean that a dismissal is unfair due to a failure to allow legal representation. Essentially, taking into account all the circumstances, including the lack of representation, the Employment Tribunal must still determine whether the process has been fair or not. The EAT case of Ministry of Justice v Parry [2013] ICR 311 makes this clear. In this case the Claimant, a District Probate Registrar, was summarily dismissed for gross misconduct. The Claimant requested legal representation at the appeal hearing. This request was refused by the employer but written submission from the Claimant's solicitor were accepted and considered by the employer in the context of her appeal. The Employment Tribunal held that the lack of legal representation amounted to a breach of Article 6. On appeal the EAT held that there was a contractual right to dismiss in this case but in some circumstances there could be broader civil rights that required to be brought into the mix (such as whether the employee could continue to work in their chosen profession). It held that where an employee's civil rights where engaged, Article 6 must be observed by employers. In this case the EAT held there was insufficient evidence to determine this and the case was remitted to a fresh tribunal for determination.

Whilst it may be thought to be the case that the ECHR would benefit employees only in the context of unfair dismissal proceedings, there is also a potential benefit to employers as well. Article 6 of the ECHR states that every litigant is entitled to 'a fair trial within a reasonable time'. This is an entitlement of the part of both parties to any litigation. In the case of Riley v The Crown Prosecution Service [2013] EWCA Civ 951 the Employment Tribunal struck out a claim on the basis that medical evidence concerning the Claimant indicated that a fair hearing was not possible in the foreseeable future. The judge concluded that as there was no prognosis of when Mrs Riley would be fit enough to take part in the proceedings, a fair trial was not possible and the claim was therefore struck out. Mrs Riley appealed. This was rejected firstly by the EAT then the Court of Appeal. The Court of Appeal held that the overriding objective required tribunals to deal with cases justly and expeditiously, without unreasonable expense, and that a litigant's right to a fair trial within a reasonable time applied to both parties.

Article 8 - right to respect for private & family life

Article 8 states "everyone has the right to respect for his private and family life, his home and his correspondence".

This Convention right was considered by the Court of Appeal in the case of Turner v East Midlands Trains Ltd [2012] EWCA Civ 1470. The facts of this case involved the dismissal of a train conductor in connection with ticket irregularities. The Tribunal applied the band of reasonable responses test to both the fairness of the investigation and the ultimate decision to dismiss and held that the dismissal was fair. In the context of this case the Tribunal required to consider the question of whether Article 8 was engaged. It held that it was not.

The Court of Appeal held that the test for determining the fairness of a dismissal as set out in s98(4) of the Employment Rights Act 1996 provides a sufficiently robust, flexible and objective analysis of all aspects of any dismissal decision and ensures compliance with the ECHR as the test requires a heightened standard to be adopted where the consequences of dismissal are particularly serious for the employee.

Essentially, the Court of Appeal held that the UK unfair dismissal legislation already provides sufficient protection and, therefore, even if the ECHR was engaged, there would be no impact on the outcome as the band of reasonable responses test was, in itself, compatible with Article 8.

Public v private sector employee

It should be borne in mind that the Human Rights Act only binds public authorities and, as a consequence, the rights contained in the ECHR are only directly enforceable against a public sector employer. This could leave employees within the private sector with limited recourse for any breach of their rights as the Human Rights Act does not make rights under the ECHR directly enforceable against private sector employers.

However, it should also be noted that an Employment Tribunal is a public authority and is bound to give effect to UK legislation "in a way which is compatible with" the ECHR. Therefore, whilst human rights duties are not directly applicable to private sector employers, they may still impact on the law of unfair dismissal, where ECHR rights are engaged.

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