O'FLYNN v AIRPORT COACH COMPANY LTD [2002] EWCA Civ 1570

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
[2002] EWCA Civ 1570Case No No A1/2002/1433Venue Royal Courts of Justice, Strand, London WC2, Tuesday, 24th September 2002
Between
O'FLYNNApplicantAIRPORT COACH COMPANY LTDRespondent
Before
Lord Justice LawsLord Justice KeeneMR ROBIN DAVIS - solicitor - (Instructed by K E Davis & Sons of Hayes Middlesex) appeared on behalf of the AppellantThe Respondent was not represented and did not attendDate 24 September 2002

LORD JUSTICE LAWS:

This

[1]is a renewed application for permissionto appeal against the decision of the Employment Appeal Tribunal, presided over by the tribunal's president Mr Justice Lindsay, given on 15th March 2002. Permission was refused on the papers by Lord Justice Pill on 5th August 2002.[2]Mr Davis, who is a solicitor, has appeared before us. He did not ask or require his client to come to court; consequently she has not been here. Mr Davis lacks the necessary advocacy certificate to confer on him any right of audience in this court. To avoid an adjournment and further expense we agreed to hear him. That was a wholly exceptional course. The rules relating to rights of audience are detailed and carefully balanced. It was improper for Mr Davis not to tell his client that she should be at court. His failure to do so effectively pre-empted the court's approach to the proper procedure. We trust that no such thing will happen again.[3]The applicant had been employed by the respondent as a customer care assistant from 5th August 1997 to 17th April 2000 based at[4]Heathrow Airport. The respondent employer operates a coach service in and around the major airports. In November 1999 the respondent introduced a drugs and alcohol policy in the work place. It has been called a zero tolerance policy but I am not sure that is a very helpful epithet. What it involved in practice was that 10 per cent of the employees chosen at random would be asked to submit to a drug/alcohol screening process each year. If a selected employee's test result proved positive, or, as I understand it, if he or she refused a test, action would be taken in accordance with the company's disciplinary procedure and that might result in dismissal. In addition, it was stipulated that an employee reporting for duty with drugs or alcohol in his or her system would be held guilty of gross misconduct.[5]On Monday 10th April 2000 the applicant was selected for screening and asked to give a sample of urine. She told the nurse who was to do the test that she had taken cocaine the previous weekend. She admitted taking cannabis as well. She was accordingly suspended on full pay pending the test result. The result when it came was positive for cannabis but negative for cocaine. There is some evidence that the applicant said she had drunk so much that she could not remember what drugs she had taken over the weekend. She was called to a disciplinary hearing on 17th April 2000. She accepted that she knew of the company's drugs policy and that testing positive was a dismissible offence. She was dismissed.[6]She brought proceedings in the Employment Tribunal alleging wrongful and unfair dismissal. In addition to the matters set out I should note this finding by the Employment Tribunal:
"9 (v) In the course of her employment the applicant could be required to assist drivers in manoeuvring coaches and could also be required to serve hot drinks on moving coaches and, although she was not asked to perform either duty on a regular basis, she could be asked to do so at any time."
[7]Three arguments appear to have been run before the Employment Tribunal. First, it was said the drugs policy was a unilateral variation of the applicant's contract of employment to which she had not consented. Secondly, it was said that the sanction of dismissal was, on the facts, unreasonable and unfair. Thirdly, it was said that her rights under Article 8 of the Human Rights Convention had been infringed. It is to be noted that the Employment Tribunal hearing took place on 2nd October 2000, the day when the principal provisions of the Human Rights Act 1998 came into force. The Employment Tribunal dismissed her claim and her appeal to the Employment Appeal Tribunal was also dismissed.[8]I should note in passing that as well as seeking permission to appeal the applicant seeks an order for production of the notes of the chairman of the Employment Tribunal which were not before the Employment Appeal Tribunal.[9]The suggestion that the drugs policy instituted by the respondents was a unilateral variation of the applicant's contract of employment has, quite rightly, not been pursued. The whole thrust of the detailed skeleton argument and Mr Davis's oral submissions today has been towards the alleged Convention rights. Thus, it is said that the application of the drugs policy, including the requirement of random testing, amounts to a violation of her rights under Article 8 of the Convention because it is invasive of her freedom to do as she pleases away from work and cannot be justified as being proportionate to any legitimate aim.[10]It seems to me plain that there are formidable and ultimately insuperable difficulties in the applicant's way before one gets to any argument of merits based on Article 8 of the Convention. First and foremost, all the relevant events here took place pre-incorporation. The Employment Tribunal hearing took place on the day of incorporation and obviously the Employment Appeal Tribunal hearing later. I cannot see that the acknowledged duty of the tribunals to act consistently with the Human Rights Act can, in effect, produce the result that the applicant is given the benefit of a retrospective application of the Convention rights, a retrospective application which the Human Rights Act does not envisage or provide. On that basis, in my judgment, the Convention points sought to be raised by Mr Davis simply do not properly arise.[11]Secondly, I notice that the respondent company is not a public authority and there must be some doubt as to whether Convention rights can be asserted against it. That may be a matter for argument and dispute. Leaving those points aside there is, in any event, to my mind, nothing in the merits of the Article 8 argument. I cannot think that Article 8 may properly be deployed to prevent insistence by an employer that his employees do not engage in non-trivial criminal offences where their doing so might impinge on their performance at work. Article 8, as I see it, confers no right to take drugs in defiance of the general criminal law, and here it is impossible to disregard the potential effects of an employee's drug taking on his or her efficiency and safety at work. I do not consider the policy to be arguably disproportionate to the aims in view.[12]In my judgment there is nothing in this application. There is no purpose in ordering production of the notes of the chairman of the tribunal. I would dismiss the application for permission.

LORD JUSTICE KEENE: I agree. I endorse my Lord's remarks on the matter of representation before the court. For a solicitor without the right of audience to turn up for a hearing without his client is, in effect, to hold a gun to the court's head. A refusal to hear him on that occasion would mean a most regrettable adjournment. This practice should not take place and this must not happen again.

[14]On the merits of the proposed appeal I can see no way in which the retrospectivity objection could be overcome in this case. Mr Davis accepts that the employer could not have been in breach of the applicant's Article 8 rights by the way it applied its drugs policy to her in April 2000 or by its dismissal of her at that time because all those events took place before the Human Rights Act came into effect. It is true that the Employment Appeal Tribunal hearing was subsequent to that Act taking effect, and such a tribunal is a public authority for the purposes of Section 6 (1) of the Act. Therefore it must take the Act and the Convention into account when developing the law. In particular, it must not act incompatibly with a Convention right (see Section 6 (1)). But the plain fact is that the tribunal here did not act incompatibly with the applicant's Convention rights. The applicant did not enjoy those rights in English domestic law before 2nd October 2000 and the Employment Tribunal was not required to confer them on her in some retrospective fashion.[15]The argument being advanced on behalf of the applicant was considered and rejected, in effect, by the House of Lords in Lambert [2001] 3 WLR 206 (see in particular the speech of[16]Lord Hope at paragraph 112). Any other conclusion than this would mean that the employer was being subjected to European Convention rights before the Human Rights Act came into operation. That is not what the Act intended, nor is it the proper interpretation of the Act.[17]I can see therefore no real prospect of success and I, too, would dismiss this application.

Order

Application dismissed

Cited in 4 later judgments