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16 November 2012
Court of Appeal
Maurice Kay, Elias LJJ and Sir Stephen Sedley
Article 8 of the European Convention on Human Rights guarantees respect for private and family life. Action which damages a person's reputation or possibly (though the court was less sure of this) future job prospects or social relationships with colleagues could breach Article 8 and dismissal for misconduct could have that effect. However, Article 8 is not engaged where the damage to private and family life is caused by the conduct of the employee; and if the employee is found by a court, in civil or criminal proceedings, or by an employer in fair disciplinary proceedings, to be guilty of that conduct, then the employee will be treated as have been responsible for the damage to private and family life. So Article 8 will rarely be relevant to misconduct dismissals. Anyway, the standard ‘band of reasonable responses' test for unfair dismissal satisfies the safeguards and principles of Article 8.
The employers in this case concluded, by examining statistics demonstrating the number of invalid tickets issued by T when compared to other employees, that T was guilty of selling invalid tickets and keeping the proceeds. They therefore dismissed T. A tribunal held that this conclusion was within the band of reasonable responses and was fair. T appealed up to the Court of Appeal, arguing that a higher standard than the ‘band of reasonable responses' test was required where the reasons for dismissal would damage reputation and so engage Article 8.
The Court of Appeal held first that Article 8 did not apply where the employee, by his or her own conduct, was responsible for the reputation damage. That included cases where the employee had been found in the course of fair disciplinary proceedings to have committed the act complained of - so it all depended on the fairness of the disciplinary process. The band of reasonable responses test provided all the protection required to determine whether the process was fair and satisfied Article 8.
The status of employment rights on the transfer of an undertaking is an extremely complex area of...