Unfair Dismissal and the Human Rights Proportionality Test

In a recent test case the Court of Appeal was asked whether the European Convention of Human Rights’ proportionality test applied to cases of Unfair Dismissal (Turner v East Midlands Trains Limited).

A female train conductor with 12 years’ service was accused of fraud, and her claim for unfair dismissal was rejected by an Employment Tribunal. She appealed, claiming that the Tribunal should have considered that in losing her job her rights under Article 8 of the ECHR were violated – namely her right to respect for a private and family life. She was accused of selling train tickets for cash, and was dismissed in March 2010. Her unfair dismissal claims were rejected by both the Employment Tribunal and the Employment Appeal Tribunal.

Her argument to the Court of Appeal, seeking effectively a re-hearing in front of a new Employment Tribunal, was that at the age of 51 the dismissal had damaged her reputation, ruined her chances of getting another job and destroyed her relationship with long-standing colleagues. Her solicitors argued that the consequences of the dismissal were so serious that the ET should have considered whether there was a disproportionate negative effect on her human rights, rather than whether the dismissal was within a band of “reasonable responses”.

East Midlands Trains argued that a thorough and fair investigation was carried out before dismissing Mrs Turner.

The Court of Appeal upheld the decisions made by the ET and the EAT.

The Court found that tribunals do not have to modify the “range of reasonable responses” test where an employee’s dismissal engages his or her rights under Article 8 of the European Convention on Human Rights.

The Court also confirmed that as long as the dismissal procedure has been carried out in a procedurally correct and fair manner, employers should have confidence in the disciplinary process and not be too concerned about an employee invoking their Article 8 rights under the ECHR.