Q v Secretary Of State For Justice

Where dismissal engages an employee’s Convention rights, the Employment Tribunal must itself decide whether dismissal was a justified and proportionate interference. An unjustified or disproportionate interference falls outside the range of reasonable responses under section 98 of the Employment Rights Act 1996.

The same substantive assessment applies to public and private employers. A public employer additionally owes direct Convention duties, but the Tribunal’s own conclusion on proportionality determines the unfair-dismissal claim. An employment duty, express or implied and supported by applicable standards, may satisfy the requirement that an interference be prescribed by law. Protection of a public service’s safeguarding functions, reputation and statutory relationships may provide legitimate justification, even where the underlying private matter is not generally public.

The Claimant, formerly employed in the Probation Service, was dismissed for gross misconduct. The Employment Tribunal found that, despite a previous final written warning, she deliberately failed promptly to disclose that Social Services considered her a risk to her daughter and had imposed a child protection plan. It held that dismissal was within the range of reasonable responses and that the interference with her Article 8 rights was proportionate.

The Claimant appealed against the dismissal of her unfair-dismissal claim. She contended that the Tribunal had made contradictory or inadequate findings about what her managers knew, and had failed properly to assess the Article 8 implications of dismissal for sensitive private and family matters.

1. Appeal dismissed. The Employment Tribunal’s findings were neither contradictory nor non-Meek-compliant. Read in context, its finding that the employer was not informed until 19 June 2015 concerned the salient fact that Social Services regarded the Claimant, rather than a third party, as the source of the risk which led to the new child protection plan.

2. In an unfair-dismissal claim where Convention rights are engaged, the Tribunal must reach its own conclusion on whether dismissal was a disproportionate and unjustified interference. If it was, dismissal falls outside the range of reasonable responses under section 98(4) of the Employment Rights Act 1996. This substantive task applies whether the employer is public or private. A public employer has an additional direct Convention duty, but that does not alter the Tribunal’s ultimate task.

3. The Tribunal correctly found that Article 8 was engaged. The information concerned highly private domestic, family and safeguarding matters. However, the employer’s requirement was confined in substance to timely disclosure of the Claimant’s own relevant involvement with Social Services; it did not require disclosure of every detail of family proceedings or access arrangements.

4. The interference was prescribed by law through the Claimant’s express or implied employment duties, reinforced by applicable codes of conduct. The employer’s objectives of protecting the effective discharge of the Probation Service’s safeguarding functions, its reputation, and its relations with Local Authorities as statutory partners were capable of falling within Article 8(2). The reference to a pressing social need did not create a separate additional hurdle beyond the proportionality assessment.

5. The Tribunal was entitled to find the interference proportionate. The fact that the matter was not generally public did not remove the legitimate concern about the employer’s relationships with statutory partners or possible public confidence. It was also entitled to take account of the Claimant’s previous final warning, her deliberate withholding of the relevant information, and her lack of constructive engagement with Social Services as bearing on professional judgment. The dismissal was therefore fair.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal upheld the Employment Tribunal’s dismissal of the unfair-dismissal claim.
• Employment Tribunal: following a full merits hearing, dismissed the Claimant’s unfair-dismissal and disability-discrimination claims. No citation is stated for that decision.