The claimant in Turner v East Midlands Trains Ltd was a senior train conductor who was dismissed after her employer concluded that she had been issuing fake tickets and selling them. There was no direct evidence but the dismissal was founded on statistics which revealed that she had registered 132 non-issued tickets in a 36 week period, compared to the next highest figure of 20. The claimant argued that the seriousness of the allegations and the potential impact on her future meant that her rights under Article 8 of the European Convention on Human Rights (the widely construed right to a private life) were relevant and, as a result, stricter procedural requirements applied, rather than the standard "band of reasonable responses" test under which the tribunal reviews the employer's decision.
The Court of Appeal agreed that Article 8 was applicable, because of the potentially grave adverse effect of dismissal on the claimant's reputation. However, the band of reasonable responses test was compatible with the protection of Article 8 rights because it does provide an objective assessment of the employer's behaviour, even though the test includes the principle that the tribunal cannot substitute its view for that of the employer (so the fact that the tribunal might have assessed the misconduct differently does not mean that the employer has acted unfairly).
The Court of Appeal did stress that the nature and consequences of the allegations in a misconduct situation are always relevant as part of the circumstances of the case and, where reputational damage is at issue, the employee's culpability must be investigated by the employer with a full appreciation of the potentially adverse consequences to the employee. The fact that previous case law on the reasonable responses test has established that the employer's investigation should be especially rigorous when the misconduct charges, or their potential effect on the employee, are particularly grave, meant that the test survived the Court's examination.