February 1, 2013

Article 8 ECHR and Range of Reasonable Responses

In Turner v East Midlands Trains Limited the Court of Appeal has given a robust decision rebutting an attempt by an employee to assert that, where his Article 8 rights to a private life are engaged, the test for whether or not the employer's actions were within the band of reasonable responses is a test which should be that much higher than in circumstances where Article 8 is not engaged.

The Claimant was a train conductor who was dismissed for alleged ticket fraud.  The tribunal, endorsed by the EAT, found that his employer’s investigation fell within the band of reasonable responses and the dismissal was fair. The argument in the Court of Appeal was that where the dismissal was for alleged dishonesty, this caused damage to reputation which engaged the Article 8 right to a private life under the ECHR and that, as such, there should be a higher test than the "reasonable responses" test to decide whether or not a sanction was appropriate.

While the Court of Appeal accepted the engagement of Article 8, it did not accept that the test for deciding whether or not the employer’s response to the misconduct should be judged at a different, higher, standard just because of this. The Court of Appeal held that the current test for the band of reasonable responses was a thorough, fair, and proper test and it could not see an argument for a different, higher, standard of test just because of the engagement of Article 8. The Claimant therefore lost his attempts to demonstrate that his dismissal was unfair for this reason.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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