Vining v London Borough of Wandsworth

Dismissal does not by itself engage the right to respect for private life under article 8 of the European Convention on Human Rights. The ordinary consequences of redundancy, without stigma, an allegation of misconduct or another special feature affecting private life, also fall outside its ambit.

A trade union’s right to be consulted about proposed collective redundancies is an essential element of freedom of association under article 11. Legislation excluding a class of employees and their union from that right requires justification. Where none exists, section 3 of the Human Rights Act 1998 may require the exclusion to be read as inapplicable, provided that construction does not contradict the legislation’s fundamental features.

Two parks constables brought ordinary unfair dismissal claims after the respondent local authority disbanded its parks police service. Their recognised union, UNISON, sought a protective award for an alleged failure to consult collectively about the redundancies.

The employment tribunal held that the statutory police-service exclusions did not prevent the claims. After London Borough of Redbridge v Dhinsa and McKinnon [2014] EWCA Civ 178, the Employment Appeal Tribunal held in [2015] UKEAT 0234 that the employees fell within those exclusions and that the exclusions did not breach Convention rights.

The appeal concerned whether the unfair-dismissal exclusion engaged articles 8 and 14, and whether the collective-consultation exclusion infringed article 11. It also concerned whether the latter exclusion could be read compatibly under section 3 of the Human Rights Act 1998.

1. The appeal was allowed in part. The employees’ appeals concerning ordinary unfair dismissal were dismissed. UNISON’s appeal concerning collective redundancy consultation was allowed, the employment tribunal’s original decision on that issue was restored, and the substantive protective-award claim was left for determination by that tribunal.

2. The domestic construction established in London Borough of Redbridge v Dhinsa and McKinnon [2014] EWCA Civ 178 remained applicable. Parks constables were employed in police service for the purpose of section 200 of the Employment Rights Act 1996. The absence of argument about the Convention in that case did not make its domestic-law decision per incuriam.

3. Article 8 was not engaged merely because employment had ended. Nor did the ordinary consequences of collective redundancy bring the case within article 8 or its ambit for article 14. Length of service, loss of workplace relationships, financial consequences, distress, the need to seek work and age-related difficulty in finding work were features commonly associated with dismissal. The redundancies involved no imputation of misconduct or stigma and had no special feature affecting private life. The court did not rule that redundancy could never engage article 8.

4. The statutory rights under sections 188–192 of the Trade Union and Labour Relations (Consolidation) Act 1992 were essential elements of article 11 freedom of association. They were collective rights to consultation about avoiding dismissals, reducing their number and mitigating their consequences, undertaken with a view to agreement. Whether or not described narrowly as collective bargaining, they were closely analogous to collective bargaining and concerned matters of equal importance to working conditions.

5. The United Kingdom had a positive obligation to secure effective enjoyment of those rights. A legislative exclusion of a class of workers had to strike a fair balance and required justification. The Secretary of State offered no justification for excluding parks constables or their union. The exclusion therefore infringed their article 11 rights. The special provision for restrictions affecting the police in article 11(2) did not assist because such restrictions had to be strictly construed and justified.

6. Section 280 of the 1992 Act could be read compatibly under section 3 of the Human Rights Act 1998. It did not apply to constables employed under article 18 of the 1967 Order or section 77 of the Public Health Acts Amendment Act 1907. That reading did not go against the statutory grain because the primary intention was to exclude employees of traditional police forces, and no rational justification had been shown for excluding parks police.

1. Court of Appeal (Civil Division): By [2017] EWCA Civ 1092, dismissed the employees’ appeals concerning unfair dismissal, allowed UNISON’s appeal concerning collective consultation, and restored the employment tribunal’s original decision on that issue.
2. Employment Appeal Tribunal: By [2015] UKEAT 0234, Slade J allowed the local authority’s appeal and held that the statutory police-service exclusions prevented both categories of claim and did not breach the Convention rights relied upon.
3. Employment tribunal: Determined as preliminary issues that the local authority could not rely on the statutory exclusions. The merits of the claims were not decided.