Turner v East Midlands Trains Limited[2012]

Human Rights and unfair dismissal

Issue

  • Does the “band of reasonable responses” test have to be modified when an employee’s rights under the European Convention on Human Rights (ECHR) are engaged?

Scenario

  • T was a senior train conductor who was dismissed for gross misconduct after being accused of fraud. There was no direct evidence of T’s dishonesty.

Legal framework

  • Section 3 of the Human Rights Act (HRA) requires that, where possible, legislation should be constructed so as to conform with the ECHR.
  • Consequently, section 98(4) ERA 1996 should if possible be read compatibly with the ECHR.
  • Where Article 8 rights (to respect for private and family life) are engaged, as a result of a dismissal, there is a procedural duty to act fairly.

Case significance

  • The case for T was that, where the employee’s rights under Art 8 are engaged :
    • an ET must determine whether or not the Art 8 right has been unlawfully infringed;
    • it is not enough for an ET simply to review a decision taken by the employer; and
    • in that sense the traditional test under s98(4) is not adequate.
  • The CA disagreed, holding that the “band of reasonable responses” approach satisfies the requirements of the HRA.
  • The CA has further closed down human rights arguments in UD cases.