Turner v East Midlands Trains Ltd

The Court of Appeal held that the domestic unfair dismissal test embodied in section 98 of the Employment Rights Act 1996 — conventionally expressed as the "band of reasonable responses" test — is compatible with Article 8 of the European Convention on Human Rights. The tribunal was entitled to find that the employer's investigation and disciplinary process were within the range of responses open to a reasonable employer and therefore fair. The court concluded that, even if Article 8 procedural standards were engaged, the tribunal's application of the domestic test provided sufficient protection and, in any event, the tribunal would inevitably have reached the same conclusion on the facts.

Key principles: (1) the band of reasonable responses test governs fairness under s.98(4); (2) Article 8 can be engaged by dismissal where reputation, future employment prospects or workplace relationships are seriously affected, but Article 8 does not require a different procedural test; and (3) where allegations are serious a reasonable employer is expected to carry out a careful investigation, but that standard is encompassed within the band of reasonable responses.

Background and facts:

• The appellant, a senior train conductor with over 12 years' service and a previously clean record, was dismissed for alleged deliberate manipulation of an Avantix ticket machine to produce "automatic non-issued" tickets which were then sold and the proceeds retained. The employer's case relied on statistical evidence over a 36-week sample period showing the appellant had 132 ANIs whereas the next highest was 20.
• The employment tribunal found there was no direct evidence of manipulation but, on the basis of the statistical disparity and the tribunal members' industry experience, concluded the employer's investigation and conclusion that the conduct was indicative of repetitive pilfering were within the band of reasonable responses.

Procedural posture: The Employment Tribunal rejected the Article 8 argument (finding it not engaged and, alternatively, that the domestic test was compatible). The Employment Appeal Tribunal initially refused the appeal on paper; permission to appeal to the Court of Appeal was subsequently granted by HHJ Serota QC.

(i) Nature of the claim / relief sought: An appeal to the Court of Appeal contesting the employment tribunal's finding of fairness of dismissal and contending that Article 8 ECHR required a different, stricter review of the employer's investigatory procedures.

(ii) Issues framed by the court: Whether Article 8 was engaged by the dismissal; if engaged, whether the domestic "band of reasonable responses" test provides a standard of review compatible with Article 8 procedural protections; and if there is a difference, whether any such difference would have altered the tribunal's conclusion on these facts.

(iii) Court's reasoning and conclusion: The court accepted that dismissal can, in principle, engage Article 8 where reputation, future employment prospects or workplace relationships are seriously affected, but held that Article 8 does not require a distinct procedural test beyond the domestic fairness inquiry. The band of reasonable responses test is sufficiently flexible and objective to accommodate the heightened investigative standard required where allegations are grave. The tribunal had considered and rejected the appellant's suggested alternative explanations for the statistics and gave adequate reasons for not pursuing a burdensome and equivocal enquiry into ticket inspectors. The Court of Appeal dismissed the appeal both because the domestic test complies with Article 8 and because, even if the tribunal had applied a stricter Convention test, it would have inevitably reached the same result.

Appeal dismissed. The Court of Appeal held that the "band of reasonable responses" test under section 98 is compatible with Article 8 ECHR for assessing procedural fairness in dismissal cases; the Employment Tribunal's finding that the employer's investigation and disciplinary response were within that band was sustainable and, even if Article 8 required heightened scrutiny, the tribunal would have reached the same conclusion on these facts.

Appeal from the Employment Appeal Tribunal (EAT reference UKEATPA/1052/11/DA) following an Employment Tribunal decision. The EAT (McMullen QC) initially refused the appeal on paper; following a Rule 3(8) reconsideration and a permission stage HHJ Serota QC granted permission to appeal to the Court of Appeal. The Court of Appeal delivered judgment [2012] EWCA Civ 1470.