Vining and others v London Borough of Wandsworth

The Court of Appeal considered whether members of local authority parks police forces and their trade union could bring claims under domestic unfair dismissal and collective consultation provisions when those statutory provisions exclude persons in "police service". The court treated as central the interaction between the domestic exclusions (section 200 of the Employment Rights Act 1996 and section 280 of the Trade Union and Labour Relations (Consolidation) Act 1992) and Convention rights under Articles 8, 11 and 14 of the European Convention on Human Rights.

The court held that Article 8 does not generally become engaged by ordinary redundancies and, on the facts and legal principles derived from Strasbourg authorities (including Martinez, Sidabras, Volkov, IB and Boyraz), the circumstances alleged did not fall within the ambit of Article 8. Consequently the appellants' unfair dismissal claims (excluded by section 200 as a matter of domestic law following Redbridge) were dismissed. By contrast Article 11 protects collective bargaining and consultative mechanisms as "essential elements" of freedom of association. In the absence of any justification advanced by the Secretary of State, the exclusion of parks police from the statutory collective consultation regime could not be sustained. Applying section 3 of the Human Rights Act 1998, section 280 was read so as not to exclude those employed as constables under the 1967 Order or section 77 of the 1907 Act, restoring UNISON's right to pursue a protective award claim.

Background and parties: Maurice Vining and Stephen Francis were employed as parks constables by the London Borough of Wandsworth and were dismissed in March 2012 as redundant when the parks police service was disbanded. UNISON, their recognised union, brought proceedings for a protective award for alleged failures in collective consultation. The employer relied on statutory exclusions for persons in "police service" found in section 200 of the Employment Rights Act 1996 (unfair dismissal) and section 280 of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancy consultation rights). Prior to the Employment Appeal Tribunal decision, this court had decided London Borough of Redbridge v Dhinsa and McKinnon ([2014] EWCA Civ 178) that parks police are in "police service" for domestic law purposes.

Nature of the claims: The employees sought to bring ordinary unfair dismissal claims; UNISON sought a protective award under section 189 (for breaches of the consultation duty in section 188). The appellants challenged the EAT's conclusion that the statutory exclusions were compatible with ECHR Articles 8, 11 and 14.

Issues framed: (i) whether Article 8 (right to respect for private life), alone or with Article 14, requires that the domestic exclusion in section 200 be disapplied or read down so that parks police can bring unfair dismissal claims; (ii) whether Article 11 (freedom of association) requires that section 280 be read so that UNISON (and its members in parks police) can rely on the collective consultation rights in sections 188–192 of the 1992 Act; and (iii) whether section 3 of the Human Rights Act 1998 permitted a compatible reading of the domestic provisions.

Court's reasoning on Article 8: The court summarised Strasbourg authority and reiterated that termination of employment does not automatically fall within the ambit of Article 8. The court distinguished the present redundancies from cases where dismissal or exclusion had special features (stigmatisation, reputational harm, restriction on an individual's ability to pursue a profession closely linked to private life). The pleaded consequences of redundancy (length of service, distress, difficulty in finding work at ages 53 and 60, loss of workplace relationships) were held to be matters common to many redundancies and not sufficient here to engage Article 8 or Article 14 in conjunction with Article 8. Accordingly the employees' Article 8 arguments failed and their unfair dismissal claims remained excluded as a matter of domestic law.

Court's reasoning on Article 11: The court held that the rights to collective consultation and to be heard, as provided by sections 188–192, fall within the "essential elements" of Article 11. Where the state provides a statutory collective consultation scheme, exclusions of categories of workers require justification. The Secretary of State advanced no justification for excluding parks police (or their union) from section 188–192. Article 11(2)'s carve-out for police must be construed strictly and any restriction requires convincing and compelling reasons; none were offered. Applying section 3 of the Human Rights Act, the court read section 280 so that it did not apply to persons employed as constables by virtue of Article 18 of the 1967 Order or section 77 of the 1907 Act, thereby restoring UNISON's entitlement to bring proceedings under section 189. The court remitted the substantive protective award claim to the employment tribunal.

Outcome and consequences: The employees' appeals on unfair dismissal were dismissed; UNISON's appeal was allowed and the Employment Tribunal's original decision in UNISON's favour was restored so that the collective consultation claim proceeds on the merits. The court invited the Government to reconsider the statutory position in light of the anomalous exclusion of parks police.

This was an appeal allowed in part. The court dismissed the employees' appeals on Article 8 grounds and upheld that, as a matter of domestic law following Redbridge, section 200 of the Employment Rights Act 1996 excludes ordinary unfair dismissal claims by parks police because Article 8 was not engaged on the facts and principle. The court allowed UNISON's appeal under Article 11, holding that collective consultation rights fall within the essential elements of freedom of association and that section 280 of the 1992 Act, read compatibly with the Human Rights Act 1998, does not exclude persons employed as constables under Article 18 of the 1967 Order or section 77 of the 1907 Act from the section 188–192 consultation regime; accordingly UNISON may pursue a protective award claim and the matter returns to the Employment Tribunal.

Employment Tribunal (preliminary decision that statutory exclusions did not apply) (23 January 2013); Court of Appeal decision in London Borough of Redbridge v Dhinsa and McKinnon [2014] EWCA Civ 178 (decided 7 June 2013) held parks police to be in "police service" for domestic law purposes; Employment Appeal Tribunal Slade J [2015] UKEAT 0234 allowed Wandsworth's appeal on domestic law grounds and held no incompatibility with ECHR (permission to appeal given on Article 11 and Article 8 grounds); appeal to the Court of Appeal ([2017] EWCA Civ 1092) determined on 28 July 2017.