X v Y

Section 3 of the Human Rights Act 1998 applies to unfair dismissal legislation governing disputes between private parties. An employment tribunal must therefore read section 98 of the Employment Rights Act 1996, so far as possible, compatibly with applicable Convention rights.

The tribunal should first decide whether the dismissal falls within the ambit of a Convention right. Article 8 depends on all the circumstances, including the nature and location of the conduct and any reasonable expectation of privacy. If the right is engaged, the tribunal should examine the state's positive obligation, justification, the availability of a permissible reason for dismissal, and statutory fairness.

A private employer incurs no direct liability under sections 6 and 7 of the 1998 Act. Ordinarily, however, dismissal involving unjustified interference with private life will also be unfair under section 98.

The appellant worked for a private-sector charity in a position of trust involving young offenders and vulnerable young people. He was dismissed for gross misconduct after accepting a police caution for a sexual offence committed in a publicly accessible lavatory and failing to disclose the caution. The employment tribunal found a conduct reason and held that dismissal fell within the range of reasonable responses. The Employment Appeal Tribunal dismissed his appeal.

The Court of Appeal granted permission to determine whether sections 3 and 6 of the Human Rights Act 1998 altered the application of section 98 of the Employment Rights Act 1996 in a dispute with a private employer. The central issues were whether article 8 was engaged, whether article 14 assisted the employee, and how employment tribunals should address Convention rights in unfair dismissal proceedings.

1. Appeal dismissed. The employment tribunal made no error of law in finding the dismissal fair. Mummery and Dyson LJJ held that article 8 was not engaged. The sexual activity was transitory, occurred between strangers in a publicly accessible lavatory and resulted in a caution for a criminal offence relevant to the appellant's employment. The participants had no reasonable expectation of privacy in those circumstances.
2. Section 3 of the Human Rights Act 1998 applies to legislation governing relations between private parties to the same degree as legislation governing relations with public authorities. Employment tribunals must therefore read and give effect to section 98 of the Employment Rights Act 1996, so far as possible, compatibly with articles 8 and 14. The flexible statutory standards of reasonableness, fairness, equity and substantial merits will ordinarily achieve that result without modification.
3. A private employer is not a public authority under section 6 and cannot be sued under section 7 merely for acting incompatibly with a Convention right. The tribunal is itself a public authority, but that status reinforces its interpretative obligation rather than creating a new private-law cause of action against the employer.
4. Where Convention rights are raised, a tribunal should determine sequentially whether the dismissal falls within a Convention right; whether the state has a positive obligation to secure that right between private persons; whether any interference is justified; whether another permissible reason supports dismissal; and whether dismissal is fair under section 98 as compatibly interpreted. Justification may require consideration of necessity, legitimate aim and proportionality, together with the rights of the employer, other employees and the public.
5. Article 14 requires a sufficient or real link with a substantive Convention right. The majority found no such link because the conduct was outside article 8. The caution and the deliberate failure to disclose it were legitimate conduct reasons for dismissal.
6. Brooke LJ considered that unresolved human-rights questions might have arisen from the cautioning process and the surrounding circumstances. He nevertheless agreed that the appeal should be dismissed. The employer could treat an apparently valid caution as an admission of a sexual offence and had no duty to investigate its validity unless put on notice that something significant had gone wrong.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the determination that the dismissal was fair: [2004] EWCA Civ 662.
2. Employment Appeal Tribunal: On 11 June 2003, dismissed the employee's appeal and upheld the employment tribunal's application of the range-of-reasonable-responses approach.
3. Employment tribunal: Rejected the unfair dismissal claim in reasons sent on 12 July 2002. It found a conduct reason under section 98(2)(b) of the Employment Rights Act 1996 and held dismissal to be within the range of reasonable responses.