X v Y

The Court of Appeal dismissed an appeal against findings that a private employer had fairly dismissed an employee for gross misconduct. The leading legal issues were the effect of section 3 of the Human Rights Act 1998 (interpretation of legislation) read with section 6 (acts of public authorities) on an unfair dismissal claim under section 98 of the Employment Rights Act 1996 and whether Article 8 (right to respect for private life) and Article 14 (non-discrimination) of the European Convention on Human Rights were engaged.

The court held that, as a matter of statutory interpretation, tribunals must, so far as possible, read Part X of the ERA compatibly with Convention rights under s3 HRA, but that s3 does not create a new cause of action against a private employer under the HRA. The court found on the facts that Article 8 was not engaged because the sexual conduct occurred in a public lavatory and was not within the ambit of "private life"; accordingly Article 14 did not assist. There was no error of law in the employment tribunal's application of the ordinary unfair dismissal test (the Foley principles) and the dismissal fell within the range of reasonable responses under s98 ERA.

Background and parties: The appellant (the employee) brought an unfair dismissal claim under section 94 of the Employment Rights Act 1996 after summary dismissal by the respondent (a private charity employer) following a police caution for sexual activity in a public lavatory. The employee also originally alleged sex discrimination but withdrew that head of claim. The employment tribunal rejected the unfair dismissal claim; the Employment Appeal Tribunal dismissed the appeal; the Court of Appeal granted permission and heard the appeal.

Nature of the claim/application: (i) The claimant sought a determination that his summary dismissal for gross misconduct was unfair under Part X ERA; (ii) he argued that the dismissal also violated his Convention rights (Article 8 and Article 14) and that the HRA altered the test of fairness applied under Foley; and (iii) he sought remittance for re-hearing if the employment tribunal had misdirected itself on HRA points.

Issues framed by the court: The Court identified as the central legal question whether the combined effect of s3 and s6 HRA required an employment tribunal to consider and apply Convention rights when determining an unfair dismissal claim against a private employer, and if Article 8 and Article 14 were engaged on the facts.

Reasoning and decision: The court explained that (a) s3 HRA imposes an interpretative obligation to read legislation compatibly with Convention rights so far as possible; (b) s6(1) makes it unlawful for public authorities to act incompatibly with Convention rights but does not itself create an HRA cause of action against private employers; and (c) employment tribunals themselves are public authorities and must avoid acting incompatibly with Convention rights. The court held that s3 does apply to the ERA and may influence the application of s98 in cases where Convention rights are engaged, but that on the facts Article 8 was not engaged because the conduct occurred in a public place and there was no reasonable expectation of privacy. Article 14 therefore did not assist. The tribunal had correctly applied the Foley unfair dismissal test and there was no legal error; the appeal was dismissed. The court also provided guidance and a structured framework for tribunals to consider HRA points in unfair dismissal proceedings.

The appeal is dismissed. The Court held that while section 3 HRA requires tribunals to read the ERA compatibly with Convention rights where possible, s3 does not create new HRA causes of action against private employers and the employment tribunal was entitled to apply the established Foley unfair dismissal test. On the facts Article 8 was not engaged because the sexual act occurred in a public lavatory and there was no reasonable expectation of privacy; Article 14 therefore did not assist.

Employment Tribunal (Cardiff) rejected the unfair dismissal claim in extended reasons sent 12 July 2002; Employment Appeal Tribunal (HHJ Peter Clark) dismissed the appeal on 11 June 2003; Court of Appeal (this judgment) [2004] EWCA Civ 662 dismissed the appeal on 28 May 2004.