Q v Secretary Of State For Justice (UNFAIR DISMISSAL - Reasonableness of dismissal) [2020] UKEAT 0120_19_1001

EAT
Q v Secretary Of State For Justice (UNFAIR DISMISSAL - Reasonableness of dismissal)
[2020] UKEAT 0120_19_1001 · 2020-01-10
[64]“64. As indicated earlier, it is advisable for employment tribunals to deal with points raised under the HRA in unfair dismissal cases between private litigants in a more structured way than was adopted in this case. The following framework of questions is suggested -.(1) Do the circumstances of the dismissal fall within the ambit of one or more of the articles of the Convention? If they do not, the Convention right is not engaged and need not be considered.(2) If they do, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons? If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer.(3) If it does, is the interference with the employee’s Convention right by dismissal justified? If it is, proceed to (5) below.(4) If it is not, was there a permissible reason for the dismissal under the ERA, which does not involve unjustified interference with a Convention right? If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.(5) If there was, is the dismissal fair, tested by the provisions of s98 of the ERA, reading and giving effect to them under s3 of the HRA so as to be compatible with the Convention right?” 55. In Turner v East Midland Trains Limited [2013] ICR 525 (CA) the employee was dismissed based on a finding of fraud. She claimed that this would particularly damage her reputation, ability to find other employment, and relationships with colleagues, infringing her Article 8 rights. The Court of Appeal held that Article 8 could potentially be engaged in such a case, but not where a properly conducted process established (whether in the civil or criminal context) that she had brought those consequences on herself by her own conduct. Procedurally, section 98 of the ERA , and the “band of reasonable responses” test applied pursuant to it, were sufficiently robust and flexible to ensure compliance with Article 8. In particular, the band of reasonable responses test already allowed for a higher standard of investigation to be adopted where the consequences of dismissal for the employee might be particularly grave. That test did not require further particular modification in a case where the Article 8 right was engaged. 56. The Court also considered the approach to be taken to the application of dismissal as a sanction, in particular by reference to the discussion in Sanchez v Spain [2012] 54 EHRR 872. It concluded at paragraph 56:[56]“Strasbourg therefore adopts a light touch when reviewing human rights in the context of the employment relationship. It may even be that the domestic band of reasonable responses test protects human rights more effectively. Whether that is so or not, Sanchez shows that the interests of the employer are given significant weight when carrying out the balancing exercise which Article 8(2) requires. Sanchez strongly reinforces my conclusion that the band of reasonable responses test provides a sufficiently robust, flexible and objective analysis of all aspects of the decision to dismiss to ensure compliance with Article 8. ” 57. In Hill v Governing Body of Great Tey Primary School [2013] ICR 691 (EAT) the employee claimed unfair dismissal for having made protected disclosures. It was part of her case that her Article 10 Convention rights (freedom of expression) had been infringed. After citing the guidance in XvY the EAT observed (at paragraph 35):
“That is informative. In the present case, however, the school was not a private litigant. It is a public authority. As such, it owes, and owed, a duty directly to secure the freedoms protected by the European Convention.”
Further on, at paragraphs 44 and 45, it said: 44. It is dangerous, in our view, for a Tribunal to attempt to explain in its own home spun language what are complex provisions which have been the result of careful balance in their legislative expression. The motive of expressing it intelligibly for the parties may be admirable, but a decision reached in consequence of the application of such an encapsulation as if it were the actual legislative test is prone to error. 45. The Tribunal here purports to have applied its own encapsulation. It did not purport to apply Article 10 (2) in its own terms. Its approach should have been: (i) to ask whether what had occurred could fall within the ambit of the right to freedom of expression and; (ii) if so, then to hold that the school as a public body would be bound to respect the exercise of that right, unless it could be qualified by Article 10 (2). That would have involved considering whether the restriction on the right to freedom of expression which was complained of could be justified in accordance with Article 10 (2). Accordingly, the Tribunal would have to; (iii) identify the aim which the restriction on free speech sought to serve - which must be one or more of the aims expressly set out at 10 (2) (“Interests of National Security” etc.). Here, two aims were potentially legitimate - the protection of the reputation or rights of others, and preventing the disclosure of information received in confidence; (iv) satisfy itself that the restriction or penalty imposed in the light of that aim was one prescribed by law. That does not mean, in the UK context, that it must be provided for by statute: a common law right will suffice. A contractual term requiring respect for confidential communications would, for instance, be sufficient. So, too, would a common law right to confidentiality; (v) if so, consider if the restriction or penalty was “necessary in a democratic society”. This involves looking to see whether the measure concerned was appropriate to the legitimate aim to which it was said to relate, and that the extent of the interference which it brought to the exercise of the right was no more than proportionate to the importance of the particular aim it sought to serve. This balancing exercise was, in the first place, for the school to perform, or, in the Polkey context, to be considered as if it had performed. However, the test in the present case for the Tribunal is not whether the school would be entitled to take a particular view of the exercise of Article 10 rights but whether that was where the law actually strikes the balance. The Tribunal has to make its own assessment: it does not apply a review test. The Arguments 58. I have to say that Mr Livingston’s written submissions were somewhat discursive and repetitive. However, he brought his main points into greater focus in oral submissions. His principal arguments were as follows. 59. Mr Livingston drew three points of contrast between the facts of the present case and those of the Pay case. First, the Claimant in the present case did not work with children. There was no link between her alleged conduct and the nature of her work. Secondly, it was “unfathomable” that the matters relating to the Claimant’s alleged conduct and dealings with Social Services would enter the public domain. Thirdly, Mr Pay’s out-of-work activities were a matter of choice. The Claimant’s situation had not arisen through her active choice. 60. Mr Livingston submitted that the guidance in Turner and that in Hill applied in different types of case. In this case the Tribunal should have followed the guidance in Hill . That was for the following reasons. 61. Firstly, in the present case, as in Hill , and unlike in Turner , the employer was a public employer. There was therefore the additional ingredient that the employer itself owed its own duties to the Claimant in respect of her Convention rights - see Hill at paragraph 35. 62. Secondly, a distinction could be drawn between cases where Article 8 was invoked, on the basis that the employee had lost their job because of what they did in their private life, and those in which it was invoked, because of the impact of losing their job on their private life. Turner was a case of the latter type - the focus being on the consequences of Ms Turner losing her job. The present case, was, like Hill , one about the reason why the Claimant had lost her job. Thirdly, Turner considered the implications of Article 8 for the question of procedural fairness. In the present case, as in Hill , the issue was one of substantive fairness. 63. A structured analysis, in particular of the question of justification and proportionality, applying the guidance from the ECtHR in Pay , and that in Hill , was required in all unfair dismissal cases where Article 8 (or, indeed Article 10) was said to be engaged. This required the Tribunal to apply the specific wording of Article 8. It needed to: identify the aim, which must be one specifically set out in Article 8(2) and prescribed by law; and assess the degree of interference with the Convention right in the particular case. It must then consider whether the action of the employer was necessary in a democratic society, answered a pressing social need, was appropriate to the aim and interfered with the Article 8 right no more than was proportionate. In a public sector-case the employer had to carry out that exercise, but the Tribunal also had to do so for itself, and not merely by way of review. 64. In this case, submitted Mr Livingston, the Tribunal had not properly conducted that exercise in a structured way. It had failed to properly identify what was the degree and nature of the interference with the Claimant’s Article 8 rights, properly to analyse the justification, and consider which part of Article 8(2) applied to it, by reference to its actual words, including consideration of whether it was prescribed by law and necessary in a democratic society, and whether it answered a pressing social need. It had then failed properly to balance the aim or justification against the interference. 65. The interference with the Claimant’s private life was in this case very significant. The subject matter was intensely private domestic and family matters, which were not in the public domain; but the Respondent was expecting her to tell it, as the Tribunal put it at paragraph 45, “everything about the situation”. The Tribunal had also failed to consider that she was expected to tell her line manager, who was a temporary member of staff. The Respondent could have, but did not, confine the reporting obligation to just one, and one more suitable, person. 66. The Tribunal had not properly considered the Respondent’s justification. It had not identified the specific aim falling within Article 8(2) or what the pressing social need was. It had also failed to consider whether there was any actual likelihood of the Respondent’s reputation being affected, given that the matter was not in, and was not likely to come into, the public domain. “Likely” was the test in the Code. Regarding the Respondent’s reliance on the Claimant’s failure to co-operate with Social Services, the Tribunal failed to take into account her reasons for doing so, despite referring to them earlier in its judgment. There was no finding, or suggestion, of any unprofessional conduct in relation to her actual work with the Respondent. 67. Because it failed to properly analyse and make findings about the degree of interference with the Claimant’s Article 8 rights, and the Respondent’s purported justification, the Tribunal then failed properly to carry out, for itself, the balancing exercise between the two, and whether the interference was no more than proportionate and necessary to the aim. Dismissal was the severest sanction. The Claimant’s conduct amounted at worst to delay in putting the Respondent fully in the picture. The Tribunal had failed to take account of this. 68. Ms Webb’s principal submissions were as follows. 69. She agreed that Hill was the most pertinent authority in this case, given that the Respondent is a public sector employer, and that the case was concerned with the Claimant’s conduct, rather than the process followed by the Respondent, or the consequences of losing this particular job being peculiarly serious. 70. The Tribunal had set out Article 8 in full in paragraph 62, and could therefore be taken to have kept in mind its specific wording. 71. While the information sought by the Respondent related (as the Tribunal found) to the Claimant’s private life, and was certainly sensitive, the infringement of her Article 8 right was limited to the seeking of information . She was not, as in Pay , being expected to restrict or change her activities in her private life. Further, the Respondent did not want to be updated on matters such as the issues surrounding rights of access to the Claimant’s daughter. The specific concern was, only, with the Claimant’s own involvement with Social Services, because of it having been alleged that her conduct meant that she was a risk to her daughter and the reason why she was put on a CPP. There had also, already and in any event, been a degree of State encroachment in this area of the Claimant’s private life, by virtue of the very fact of Social Services’ involvement. 72. The Respondent plainly had a legitimate and well-founded concern about managing the risk to its reputation, given the close and important statutory relationship that it had with Local Authorities. There was also the potential that public confidence in the Probation Service would be undermined. The information sought plainly was relevant to the Claimant’s work. The Tribunal took a proper view of the Respondent’s approach to all these aspects. 73. The implied duties of the contract of employment, underpinned by the applicable codes and standards, meant that the restriction was prescribed by law. The Respondent’s concern to protect its reputation with its statutory partners, and the integrity of this part of the justice system, was plainly a legitimate aim within the purview of Article 8(2), as being necessary in a democratic society to protect the rights of others. It was proper for the Claimant’s line manager to be designated as the person to report to. But in any case, in fact, she had declined to deal with him. What she was sanctioned for was not bringing the matter promptly to the attention of any manager, even Mr H. The Tribunal had specifically (and properly) found that Mr Kerr and Ms Robinson concluded that the Claimant had knowingly withheld the salient information from the Respondent, at a time when she knew that she ought to disclose it promptly. 74. The Tribunal plainly did engage with forming its own view of proportionality, in particular in paragraph 78. It considered the degree of infringement, and had recognised that the matter was “very private” and sensitive; and that these matters were not in the public domain. It scrutinised and identified the Respondent’s aim, recognising in particular the significance to it of the statutory relationship with Local Authorities, and its reputation with its statutory partners. It had noted that Mr Kerr’s evidence about this, and its importance, was unchallenged. It was the impact on the Respondent’s relationship with Local Authorities on which it focussed in weighing proportionality in paragraph 78. It referred also to the impact on public confidence “if known”. That was not a wrong approach. 75. Having regard to all of those features, the Tribunal was entitled to regard the interference with the Claimant’s Article 8 rights as proportionate. In addition, the Respondent had been justified in taking account of the Claimant’s failure to engage with Social Services, as raising concerns in relation to her professional judgment, and of the previous final written warning. These fortified the correctness of the Tribunal’s overall conclusion that the dismissal was not unfair. The proper consideration of the Convention rights aspect was only part of the process. Discussion and Conclusions 76. As to the law, I do not think there is any tension among the previous authorities. In particular I note the following. 77. Firstly, the context of the discussion in XvY was that it was not controversial that the Tribunal would need to factor in the impact of Convention rights when considering a claim brought against a public authority; but what was at issue was the position in relation to a claim brought against a private employer. The main point of the discussion is to stress that, for reasons explained, the HRA also has an impact in relation to claims brought against a private employer, just as it does in claims brought against a public employer. 78. Secondly, I do not think there is any tension, or material difference, between the guidance emerging from Turner and that emerging from Hill . They were different types of case. The focus in Turner was on the impact, if any, which the engagement of Convention rights in a given case may have on the approach taken to questions of fair process at the section 98(4) stage; and that case was, unusually, particularly concerned with the argument that it was the consequences of dismissal that caused Convention rights to be engaged. Hill was, perhaps more typically of how these issues arise, concerned with a scenario in which Convention rights were found to be engaged because of features of the employee’s own conduct, for which she was sanctioned. 79. Thirdly, at a doctrinal level Mr Livingston is right that Hill identifies that there is an additional legal consequence which applies where the claim is against a public body. This is that, in addition to the Tribunal having a duty to weigh the impact of the dismissal upon Convention rights, and whether it is proportionate (which it must, whether the employer is a public or a private body), a public employer also itself has that same duty when taking its decision. 80. However, while that is doctrinally correct, I am doubtful that this added feature makes any real difference in practice. When I raised this with Mr Livingston he was unable to give me an example of any scenario in which it would. I say this because, whether the case involves a public or a private employer, the Tribunal must, in deciding whether the dismissal is fair or unfair, come to its own view as to whether the imposition of the sanction of dismissal involved a disproportionate and unjustified interference with Convention rights, or not. If it did, then this will take the dismissal outside the band of reasonable responses. If not, then this feature of the case will not do so. That will be the position regardless of whether the employer had a duty of its own, whether, if so, it applied its mind to the question, and, if it did, whatever conclusion it came to. It is always the Tribunal’s conclusion that, ultimately, must decide the point. 81. In all events, while I do not consider there to be any tension between the authorities, for the reasons I have given, the one that is most in point in this case is Hill . I have then considered the following specific aspects of this Tribunal’s decision. 82. First, the Tribunal plainly did apply its mind to the task of assessing for itself the question of whether the Claimant’s Convention rights were engaged, and, if so, whether the sanction of dismissal constituted a disproportionate and unjustified interference with them. It is worth noting that the Claimant herself, who is a lay person, did not raise the issue, and it was Ms Webb who, very properly, did so; and the Tribunal did then give it consideration. It cited verbatim Article 8 in paragraph 62, and referred there to the particular authority to which its attention was drawn. It then gave specific consideration to the issue at paragraphs 77 and 78. 83. I turn to the elements that the Tribunal needed to consider. 84. The Claimant’s Article 8 rights plainly were engaged, and the Tribunal properly addressed this question, and found that they were. It also cannot be faulted for its description of the issues in question as “very private issues”. 85. The Tribunal also observed that these were not issues that were “not in the public domain”, by which I take it to have meant that it recognised that they were not known to the general public at large (or the general public in her community). However, the Tribunal made full, and proper, findings, about what the Claimant was required to do. I think it is clear, reading the decision as a whole, that the Respondent did not require her to divulge every detail of Social Services’, or the Court’s involvement in matters relating to her daughter. The Claimant in fact shared information about the access issue in particular with Mr H, but this was not something he needed or required to know. Although broader language was sometimes used, the Tribunal also identified that the specific concern was to know if there was any further involvement of Social Services in which there was an issue regarding the (alleged) conduct of the Claimant herself. It also identified that she was specifically required to keep her line manager informed. 86. I do not think it can be said, therefore, that the Tribunal did not form a picture of the degree, as a matter of fact, of infringement with the Claimant’s Article 8 rights, which complying with what the Respondent wanted her to do would entail. Nor do I think it can be supposed that they did not have this in mind when they came to address this specific dimension of the decision to dismiss. 87. Turning to the question of justification, the fact that the Claimant was required to provide this information as part of her express or implied duties as an employee towards her employer, is sufficient to meet the need for any interference with her Convention rights to be “prescribed by law”. I note in this context the observation of the ECHR in Pay (at paragraph 47, and duly recognising the very different factual context) that it was “mindful that an employee owes to his employer a duty of loyalty, reserve and discretion.” Mr Livingston did not, in any event, seek to suggest that the Tribunal should have concluded that this particular requirement of Article 8(2) was not fulfilled. 88. The Tribunal plainly considered, and found, that the Respondent’s purpose in imposing this requirement on the Claimant was to safeguard the effective discharge of its functions as the Probation Service. That was in particular by safeguarding its reputation and relations with the Local Authorities with which it worked, having regard to its statutory partnership with Social Services and its involvement, as an organisation, in issues to do with the safeguarding of children. I cannot see that it can be said that these objectives should have been found to have been outwith those contemplated by Article 8(2) - which include public safety, the prevention of crime and the protection of the rights and freedoms of others - in a democratic society. 89. Mr Livingston referred to the ECHR’s statement in Pay (drawing in turn on Smith and Grady v United Kingdom [1999] IRLR 734 ) at paragraph 44 that:
“An interference will be considered ‘necessary in a democratic society’ for a legitimate aim if it answers a pressing social need and in particular is proportionate to the legitimate aim pursued.”
But I do not think this means that there is a distinct and additional hurdle of meeting a pressing social need which must be surmounted. Those words do not, themselves, appear in Article 8(2). As I read it, the Court was merely here saying that an interference which answers a pressing social need is one which would, in fact, if proportionate, fulfil the requirements of Article 8(2), not postulating some additional test. In any event, I do not think that the Tribunal ought to have concluded that the objectives which it found the Respondent to be pursuing did not meet a pressing social need. 90. Mr Livingston argues that the Tribunal should have found that the interference with the Claimant’s Article 8 rights was disproportionate because (unlike Mr Pay) her alleged conduct was not in the public domain, and there was no real risk of the public getting to know of it. It was certainly not “likely” that they would. Therefore, the Tribunal should have concluded that there was no real or likely risk of the Respondent’s reputation or activities being damaged. 91. However, I do not agree. First, the Tribunal specifically acknowledged, and found, that these matters were not in the general public domain. Secondly, however, it found that the Respondent’s particular concern was with the potential impact on its reputation and dealings with its statutory partners. Whether or not the Claimant was herself, in her work for the Respondent, also dealing with the same Local Authority whose Social Service team were responsible for her daughter (I was told at the hearing that her recollection was that she was not) that was nevertheless a Local Authority with which the Respondent as an organisation dealt. 92. Mr Keen made the point that the Claimant had always denied the conduct of which she had been accused, and no Court had found her guilty of it. But there was no suggestion that the Respondent misunderstood the position on this (or that the Tribunal thought it did). It was clear to the Tribunal that the Respondent’s concern was with managing the risk to reputation and relations with its statutory partners, created by the fact of Social Services having taken the action, and formed the view of the Claimant’s role, that they did. Further, while the Claimant did not herself work with children, the work of the Probation Service, in liaison with Local Authorities, did include matters to do with safeguarding children. I do not think the Tribunal should have concluded, that an employee such as the Claimant being accused of something of this sort, should have been regarded by the Respondent as wholly irrelevant, and of no proper concern to it. 93. In particular, given the Tribunal’s findings about the unchallenged evidence of Mr Keen, the Tribunal was, in my view, plainly entitled to conclude that he had a well founded fear that these matters could damage its reputation and relationship with its statutory partners, even if the public at large did not learn of them. Nor do I think it can be said that the Tribunal ought to have discounted entirely any risk of these matters becoming more widely known in the future; or that it was therefore wrong for it to observe that “if known” to the public, that could undermine public confidence in the Service. 94. Mr Livingston’s submitted that the Tribunal neglected to consider that the Claimant had merely delayed putting the Respondent in the loop. But the Tribunal, as I have described, made a properly reasoned finding that she deliberately withheld the information that her daughter was on the Register again because (though she vehemently disputed it) she herself stood accused of presenting a risk, at a time when she knew she was expected to report this; and that she misled Mr Keen in the disciplinary process about when she first knew that her daughter had been put back on the Register. Given those proper findings, I do not think that the Tribunal erred in this regard either. 95. Mr Livingston submits that the Tribunal should have found that it was disproportionate to require the Claimant to pass this information to her line manager, Mr S, who was not a permanent employee. However, he was still her immediate line manager. The fact that he was not permanent may have perhaps meant that the Claimant knew him less well, and was more wary of him; but his duties in relation to her, and the handling of this information, would not have been any different. I do not think it can be said that the Tribunal should have regarded this as an unjustified or disproportionate direction. In any event it was the failure to divulge this development to anyone, even Mr H, in a timely fashion, that led to the Claimant’s dismissal. 96. Given the very particular nature of the Respondent’s activities, and responsibilities, the obvious importance of what it does to society, the goals mentioned in Article 8(2), and the importance of its relationship with Local Authorities as statutory partners, I do not think that the Tribunal erred by failing to conclude that there was a disproportionate and unjustified interference with the Claimant’s Convention rights, which rendered this dismissal unfair. 97. Nor do I think it can be said that the Tribunal should have found that the Respondent was wrong to take account of the fact that the Claimant had already received a final written warning for similar conduct. It plainly considered that the warning, and what she had been told at the time, was properly regarded as reinforcing the conclusion that she knew what she was required to do, if any similar situation recurred. 98. Nor do I think the Tribunal should have concluded that the Respondent was wrong to take a view that the Claimant’s un-co-operative approach towards Social Services cast doubt on her professional judgment. This was plainly not the main reason for dismissal, as opposed to something regarded as reinforcing the decision to dismiss. I do not think the Tribunal should have found that it was wrong for the Respondent to have regard to it in that way. 99. For all of these reasons I conclude that Ground 1 is therefore also not made out. Outcome 100. Both Grounds having failed, this appeal must be dismissed.