O'Flynn v Airport Coach Company Ltd

A tribunal deciding a case after the commencement of the Human Rights Act 1998 is not required to confer Convention rights retrospectively in respect of employment events occurring before commencement. Its duty to act compatibly with Convention rights does not subject a private employer to those rights for earlier conduct.

In any event, Article 8 does not provide a right to commit non-trivial drug offences away from work where drug use may affect workplace efficiency or safety. A random workplace drugs-testing policy and dismissal following a positive result were not arguably disproportionate in that context.

The applicant, a customer care assistant for an airport coach operator, was randomly selected under the employer's drugs and alcohol policy. She admitted taking cocaine and cannabis over the preceding weekend. Her urine test was positive for cannabis, and she was dismissed after a disciplinary hearing.

The Employment Tribunal dismissed her claims for wrongful and unfair dismissal. The Employment Appeal Tribunal dismissed her appeal on 15 March 2002. She made a renewed application for permission to appeal to the Court of Appeal, principally contending that the testing policy and dismissal infringed Article 8 of the Human Rights Convention.

The central issue was whether Convention rights could affect employment events which had occurred before the Human Rights Act 1998 came into force and, if so, whether the policy was disproportionate.

1. Application dismissed. Laws LJ, with whom Keene LJ agreed, held that the proposed appeal had no real prospect of success.
2. All material employment events, including the testing and dismissal, occurred before the principal provisions of the Human Rights Act 1998 came into force. The fact that the Employment Tribunal hearing occurred on the commencement date, and the Employment Appeal Tribunal hearing later, did not retrospectively confer Convention rights on the applicant in domestic law.
3. Keene LJ explained that, although the Employment Appeal Tribunal was a public authority under section 6(1) and had to act compatibly with Convention rights when developing the law, it did not act incompatibly by refusing retrospective relief. The reasoning in Lambert [2001] 3 WLR 206 supported that conclusion. A contrary result would have subjected the employer to Convention rights before the Act operated.
4. Per Laws LJ, there was also some doubt, left unresolved, whether Convention rights could be asserted against the private employer. That issue was unnecessary to the result.
5. As an alternative assessment, Laws LJ held that Article 8 could not prevent an employer from requiring employees to refrain from non-trivial criminal drug use where it might affect efficiency and safety at work. The applicant could be required to assist with manoeuvring coaches or serve hot drinks on moving vehicles. The random testing policy and the dismissal sanction were not arguably disproportionate.
6. There was no purpose in ordering production of the Employment Tribunal chairman's notes. The renewed application for permission to appeal was dismissed.

• Court of Appeal (Civil Division): renewed application for permission to appeal dismissed: [2002] EWCA Civ 1570.
• Employment Appeal Tribunal: dismissed the applicant's appeal on 15 March 2002.
• Employment Tribunal: dismissed the claims for wrongful and unfair dismissal after a hearing on 2 October 2000.