London Borough of Wandsworth v Vining & Ors (Unfair Dismissal: Exclusions including worker/jurisdiction) [2015] UKEAT 0234_13_1812

EAT
London Borough of Wandsworth v Vining & Ors (Unfair Dismissal: Exclusions including worker/jurisdiction)
[2015] UKEAT 0234_13_1812 · 2015-12-18
[35]“Since Mr Galbraith-Marten accepts that but for the submission that the appellant brought the consequences upon herself, Article 8 would be engaged by virtue of the adverse effect on the appellant's reputation, it is strictly unnecessary to determine whether the consequences for future relationships or job prospects would of themselves be sufficient to engage it. I am inclined to think that they would not, although the damage to these interests does reinforce the conclusion that prima facie Article 8 is engaged because of the adverse effect of the dismissal on the appellant's reputation. ” 29. Volkov concerned the dismissal of the applicant from his post of judge. The ECHR observed:
“166. The dismissal of the applicant from the post of judge affected a wide range of his relationships with other persons, including relationships of a professional nature. Likewise, it had an impact on his “inner circle” as the loss of his job must have had tangible consequences for the material well-being of the applicant and his family. Moreover, the reason for the applicant’s dismissal, namely breach of the judicial oath, suggests that his professional reputation was affected.”
In these circumstances the dismissal constituted an interference with his right to respect for private life within the meaning of Article 8 of the Convention [167]. The parties agreed that there had been an interference with the applicant’s right to respect for his private life and the court found no reason to disagree [165]. 30. I accept the submission of Mr Capewell that neither Turner nor Volkov support the argument that dismissal even with its concomitant consequence of severing relationships with co-workers, does not of itself engage Article 8. In each of these cases additional features led to the engagement of Article 8 including in particular that the reason for dismissal, fraud or reprehensible conduct, had consequences on personal and professional relationships and the Applicants’ reputation. If the ECHR had considered that dismissal of itself engaged Article 8, reference to the particular consequences of dismissal for a particular reason would have been unnecessary. For example in Volkov the Court referred to these when considering whether Article 8 was engaged at all and before moving on to consider justification under paragraph 2 of Article 8. 31. The ECHR has on a number of occasions ruled that “private life” in Article 8 is a broad term not susceptible to exhaustive definition. In Sidabras v Lithuania [2006] 42 EHRR 6 the Court considered whether employment restrictions placed on the applicants because they had been KGB agents engaged Article 8. The Court held “49… Hence, and in view of the wide-ranging scope of the employment restrictions the applicants have to endure, the Court considers that the possible impediment to their leading a normal personal life must be taken to be a relevant factor in determining whether the facts complained of fall within the ambit of Article 8 of the Convention. 50. In the light of the above, the Court considers that the impugned ban affected, to a significant degree, the applicants’ ability to pursue various professional activities and that there were consequential effects on the enjoyment of their right to respect for their “private life” within the meaning of Article 8. It follows that Article 14 of the Convention is applicable in the circumstances of this case taken in conjunction with Article 8.” In my judgment it is material that these observations were made in determining whether the complained of treatment engaged Article 8 at all and not in deciding whether the difference in their treatment from non KGB members was objectively justified, satisfying the conditions in paragraph 2 of Article 8. 32. IB v Greece does not assist the Claimants’ case that their dismissals for redundancy fall within the scope of Article 8. IB was dismissed following pressure from his colleagues who did not wish to work with someone who was HIV positive. The Court held that Article 8 was engaged on these facts. The court observed at paragraph 70:
“It is therefore now established that both employment matters and situations involving HIV-infected persons fall within the scope of private life.”
The Court concluded that the facts of the applicant’s case fell within Article 8 as:
“It is clear that the applicant’s dismissal resulted in the stigmatisation of a person who, even if they were HIV-positive, had not shown any symptoms of the disease. That measure was bound to have serious repercussions for his personality rights, the respect owed to him and, ultimately, his private life. To that must be added the uncertainty surrounding his search for a new job, since the prospect of finding one could reasonably have appeared remote having regard to his previous experience. The fact that the applicant did find a new job after being dismissed does not suffice to erase the detrimental effect of his dismissal on his ability to lead a normal personal life.” 33. The Claimants were both dismissed for redundancy. It was not suggested that their selection for redundancy was for any reason which would affect their reputation, their private or professional relationships. Redundancy can be regarded as perhaps the least blameworthy reason for dismissal. None of the authorities relied upon by Ms Criddle support the proposition that dismissal of itself engages Article 8. In my judgment the claims in this appeal do not engage Article 8. 34. As Mr Capewell submitted Article 14 is inapplicable if Article 8 is not engaged. It adds nothing in the circumstance where the facts of the case are not within the ambit of Article 8. Since I have concluded that Article 8 is not engaged I will deal only briefly with the submission advanced on Article 14. 35. Article 14 prohibits discrimination on various grounds including “other status”
. Both Ms Criddle and Mr Capewell relied upon Sidabras as supporting their respective contention that “other status” for the purposes of Article 14 did or did not include a difference in treatment because of an applicant’s occupation. 36. The applicants in Sidabras complained of employment restrictions placed on them by reference to their former employment with the KGB [37]. The ECHR stated:
“The Court will therefore establish, first, whether there has been a difference of treatment of the applicants, and, if so, whether the facts of the case fall within the ambit of Article 8 of the Convention in order to rule on the applicability of Article 14.” [39] The Government of Lithuania had explained that not all former KGB officers suffered restrictions on their future employment. The Court observed that the impugned domestic legislation did not restrict the employment prospects of all former collaborators of the Soviet Security Service. An amnesty rule applied to members of the KGB who had only been engaged in criminal, as opposed to political investigations during their time at the KGB. 37. The ECHR in Sidabras therefore did not decide whether being a past member of the KGB was “other status” within the meaning of Article 14. Whilst having worked for the KGB was mentioned by the Court in deciding whether there was a difference in treatment between them and those who had not worked for the KGB, in this context it also stated: “In addition, in view of the Government’s argument that the purpose of the Act was to regulate the employment prospects of persons on the ground of their loyalty or lack of loyalty to the state, there has also been a difference of treatment between the applicants and other persons in this respect. For the Court, this is the appropriate comparison in the instant case for the purposes of Article 14.” [41] 38. The case of Sidabras proceeded on the basis that the former occupation of the applicants taken together with their personal characteristics attached to them by virtue of their particular duties brought them within the ambit of Article 8. The issue of whether having been a KGB agent was such “other status” was not a question which the ECHR was asked to decide. The issue under Article 14 was whether the difference in treatment of former members of the KGB who were regarded as having been engaged in political investigations and to whom the characteristic of lack of loyalty attached had no objective and reasonable justification and whether the restriction on their future employment was proportionate. Accordingly, Sidabras is not authority for the proposition that occupation is to be treated as “other status” within Article 14. 39. In R(RJM) v Work and Pensions Secretary [2009] IAC 311 Lord Neuberger [41] agreed with the approach taken by Lord Walker in paragraph 5 to “personal characteristics” which had been used by the ECHR in examining “other status” in Article 14. Lord Neuberger held: “Further, while reformulations are dangerous, I consider that the concept of “ personal characteristic” (not surprisingly, like the concept of status) generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him. Such a characterisation approach appears not only consistent with the natural meaning of the expression, but also with the approach of the ECtHR and of this House to the issue. 40. The proposition advanced by Ms Criddle that the occupation of the Claimants, Parks Police Constables, of itself constitutes “other status” for the purpose of Article 14 is not supported by domestic authority nor that of the ECHR. No argument or justification under Article 14 such as was considered in The Belgian Linguistic Case (No2) [1979-80] 1 EHRR 252 was advanced before the ET. The Secretary of State is not a party to these proceedings. 41. As with the Article 14 argument, the contention that ERA section 200(2) fails to safeguard the Claimants’ Article 6 rights fails for the same reason as the inapplicability of Article 14. On the facts under consideration there are no Article 8 rights to be safeguarded. Whilst submissions were developed by both counsel, in light of the conclusion on the non-applicability of Article 8 whether on its own or together with Article 14, a decision on this issue is unnecessary to the outcome of the appeal. Article 11 42. It was said by the ECHR in Demir v Turkey [2009] 48 EHRR 54 that: “… the Court has always considered that Article 11 of the Convention safeguards freedom to protect the occupational interest of trade – union members by the union’s collective action.” [140] The Court identified as being amongst the “essential elements of the right of association” the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members.” [145] 43. The right which is claimed in these cases is a remedy for failing to consult the trade union, UNISON, over proposed redundancies. Collective bargaining over employees’ interests falls within Article 11. Keith J held in R (Boots Management Services Ltd.) v CAC [2015] IRLR 15 at [25]: “It is important to note that the right to form and join trade unions in Article 11 is expressed to be “for the protection of [one’s] interests”
. So the ambit of such collective bargaining is an essential element of that right extends to what is required if those interests are to be properly protected.” Loss of employment through redundancy affects employees’ interests. Collective bargaining over job losses would fall within Article 11. The Court in Demir v Turkey [2009] 48 EHRR 54 held that “141. As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that para 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. What the Convention requires, in the Court’s view, is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests.” 44. The ECHR in Demir made it clear that while the means of affording unions their Article 11 rights are left to member states, the Article requires that they be given the means of enforcing those rights. The state has chosen consultation under TULR(C)A section 188 as the means of Trade Unions protecting employees’ interests in a redundancy situation. Unlike representation of other local authority employees, the Claimants have been deprived of that right. I do not accept the submission made by Mr Capewell that Article 11 does not go so far as to say that consultation on redundancies is mandatory or that in the event of a failure to comply there must be a right to claim compensation. Accordingly, subject to Article 11.2, in my judgment Article 11 taken together with Article 14 is engaged by the claims for protective awards. 45. Article 11.2 allows:
“The imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or the administration of the State.” 46. The Court in Demir did not accept that in the case of the groups mentioned in Article 11.2 which include the police, that “ “Lawful” in the second sentence of Article 11(2) requires no more than that the restriction in question should have a basis in national law, and not be arbitrary and that it does not entail any requirement of proportionality.” 47. As Mr Capewell rightly stated, evidence and submissions on proportionality would be a matter for the Secretary of State who has not been joined to these proceedings. This court is in no position to express a view on the proportionality of the apparent exclusion by TULR(C)A section 280 of UNISON representing the Parks Police from the right to claim a declaration and a protective award under section 189. Without a decision on whether section 280 satisfies Article 11.2 there can be no decision on whether Article 11 applies to these claims or whether Article 6 is engaged. 48. UNISON also rely on the Collective Redundancies Directive to support their claim to a protective award under TULR(C)A section 189 for Wandsworth not consulting it over the proposed redundancies of the Parks Constables. The response of Mr Capewell that the Collective Redundancies Directive expressly excludes from its scope employees of public authorities and that the Claimants fall within this group is clearly right. Article 1.2(b) provides: “This Directive shall not apply to – … (b) workers employed by public administrative bodies or by establishments governed by public law…”
Neither UNISON nor the Claimants can rely on the Collective Redundancies Directive to support their claims. Construction of ERA Section 200(2) and TULR(C)A Section 280 49. The Human Rights Act 1998 Section 3 provides “3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights. (2) This section – (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity continuing operation or enforcement of any incompatible primary legislation, …” 50. At the hearing Ms Criddle provided a draft of the interpretation she proposed of ERA section 200(2) which she contended would be in accordance with the requirements of HRA section 3 and of the ECHR . The proposed interpretation reads:
“(2) In subsection (1) “Police Service” means – (a) Service as a full member of a [virtue]constabulary maintained by an enactment, meaning a body whose sole function is to operate a police force and whose obligations in doing so are prescribed by legislation, or (b)… Service in any other capacity by virtue of which a person has the powers or privileges of a constable in full.”
A similar interpretation of TULR(C)A section 280 was advanced. 51. The short answer to the proposed interpretation of ERA section 200(2) is that the claims of unfair dismissal by these Claimants do not engage any relevant Convention rights. There is no basis for the interpretation proposed by Ms Criddle. 52. The Court of Appeal in McKinnon held that the Council’s Parks Police were a “constabulary maintained by virtue of an enactment” within the meaning of ERA section 200(2). This was not the sole function of Redbridge Council. Ms Criddle’s proposed interpretation of ERA section 200(2) that to fall within that exclusionary provision the sole function of the employer is to operate a police force is inconsistent with the judgment in McKinnon . There is no warrant for introducing the words “police force” or “full” into section 200(2)(a). 53. Further, the interpretation of ERA section 200(2)(b) proposed by Ms Criddle lacks certainty. What are the full powers of a constable? Jackson LJ held in McKinnon of all constables: “They all have the basic statutory and common law powers incidental to the office of constable and can exercise those powers within a defined geographical area. In the case of police constables that is now the whole of the UK. In the case of other constables the geographical area of their jurisdiction is more narrowly defined.” [54] Jackson LJ held at paragraph 58: “The conclusion which I come to is this. Despite being Council employees and despite being few in number, all members of the Redbridge Parks Police Service were constables in the full sense of that word. Their jurisdiction was confined to the parks and open spaces of Redbridge. Their remit was to enforce the byelaws and (subject to one or two exceptions as noted in Part 2 above) to stop people committing criminal offences in the parks).” 54. The Court of Appeal were considering cases materially indistinguishable from those of the Claimants. There is no basis to insert the words “in full” into section 200(2)(b). If “in full” is intended to mean “over an unlimited area” many constables would be excluded from the scope of the section. As in McKinnon , the Claimants had all the basic statutory and common law powers incidental to the office of constable. The fact that Parks Constables operate only within their parks is immaterial. 55. There is no basis for the interpretation of ERA section 200(2) proposed by Ms Criddle. Even on Ms Criddle’s redrafting of section 200(2), the Claimants would fall within section 200(2)(b) even if they did not come within section 200(2)(a). 56. If the exclusion of Parks Police from the right to claim a protective award does not fall within Article 11.2, TULR(C)A section 280 must be read and given effect in a way which is compatible with Article 11.1 whether taken on its own or together with Articles 14 and 6 so far as is possible to do so. In achieving such an interpretation the court may add words to section 280 if that would achieve the desired result. This is only permissible if to do so is “compatible with the underlying thrust of the legislation” as explained by Lord Nicholls in Ghaidan v Godin-Mendoza [2004] 2AC 557 at [33] or “with the grain of the legislation” or was not “inconsistent with the scheme of the legislation or with its essential principles” per Lord Rodger [121]. As emphasised by Keith J in R(Boots) v CAC at [45] and as held by Lord Rodger in Ghaidan at [110] “… however powerful the obligation in section 3(1), it does not allow the courts to change the substance of a provision completely, to change a provision from one where Parliament says that x is to happen into one saying that x is not to happen. And, of course, in considering what constitutes the substance of the provision or provisions under consideration, it is necessary to have regard to their place in the overall scheme of the legislation as enacted by Parliament. In International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728 , for instance, the Court of Appeal held that it was impossible for the court to use the interpretative obligation in section 3(1) in effect to recreate the fixed penalty scheme enacted by Parliament so as to turn it into a scheme that was compatible with article 6. As Simon Brown LJ observed, at p 758C - D, it would have involved turning the scheme inside out - something that the court could not do. Only Parliament, not the courts, could create a wholly different scheme so as to provide an acceptable alternative means of immigration control.” 57. The interpretation of section 280 advanced by Ms Criddle does not propose the removal of all reference to “constabulary” or “constable” nor could it as to do so would clearly be against the grain of the legislation. The proposed interpretation would limit the exclusionary provision to those employed by a body whose sole function was to operate a police service. This goes against the grain of the legislation by focussing on the functions of the body by whom the Claimant is engaged rather than on the service performed, whether as a member of a constabulary or as having the powers or privileges of a constable. 58. Further, for the reasons set out above when considering ERA section 200(2), the proposed interpretation lacks certainty. There is no bright line between a “full member of a constabulary” or someone with “the powers or privileges of a constable in full” and on the other hand someone who is a constable but is not a “full member of a constabulary or someone who has only some of the powers and privileges of a constable.” 59. Even if after considering Article 11.2, the claims under TULR(C)A section 189 were held to engage Article 11, in my judgment the domestic provision is not susceptible to the interpretation advanced by Ms Criddle. Declaration of Incompatibility 60. Just as they have reserved the right to contend in a higher court that McKinnon was wrongly decided, so too do the Claimants reserve the right to seek a declaration of incompatability pursuant to HRA section 4. Notice has not been given to the Crown that such a declaration may be sought as would be required under CPR Rule 19.4A(1). If such a declaration is sought it would be for determination by a higher court after such notice has been given. Conclusion 61. The appeal is allowed. The judgment of the Employment Tribunal of 28 September 2012 with Reasons of 23 January 2013 is set aside. (1) The individual Claimants’ claims for unfair dismissal are dismissed. (2) UNISON’s claim for a declaration and a protective award under Trade Union and Labour Relations (Consolidation) Act 1992 section 189 is dismissed. 62. The parties had been informed that circumstances have unfortunately led to a delay in delivering this judgment.