Turner v East Midlands Trains

The Court of Appeal has ruled today that an employee dismissed for issuing irregular and invalid train tickets for personal gain could not invoke human rights law in support of her claim for unfair dismissal. The Court also ruled that the well-established domestic test for determining fairness ("the band of reasonable responses") was consistent with the proportionality test contained in Article 8(2) of the European Convention of Human Rights.

The case has been watched by employers worried that a ruling in favour of the appellant would have made it far easier for employees to establish that their dismissal was unfair and more difficult for employers to know what was required of them in respecting employees' rights during the course of legitimate disciplinary proceedings leading to dismissal.

East Midlands Trains dismissed Heather Turner after an internal investigation by the company found her guilty of fraudulently selling tickets produced by a portable ticket machine which classed them as 'non issues' because of small printing errors.

Turner brought a claim of unfair dismissal in the Employment Tribunal in which she argued that Article 8 of the Convention applied because the dismissal had interfered with her relationships with colleagues and damaged her reputation and future job prospects. She maintained that the Tribunal was bound to apply a proportionality test in preference to the band of reasonable responses test. The proportionality test would require the tribunal to decide for itself whether both the investigation and the decision to dismiss a claimant were proportionate i.e. whether they were done in pursuit of a legitimate aim and necessary in a democratic society such as to limit a claimant's right to respect for their private life.

The Employment Tribunal dismissed the claim and the Court of Appeal has now rejected an appeal against that decision. Lord Justice Elias said:

"I am satisfied that so far as procedures are concerned, the domestic test of fairness does not fall short of the procedural safeguards required by Article 8. In that context, I reject the appellant’s submission that the concept of proportionality is either a helpful or relevant one when considering the fairness of the procedures."

"Since in this case the employee has conceded that the procedures satisfied domestic standards, and given my conclusion that these reflect Article 8 requirements, it follows that the appeal must fail."

Lord Justice Elias went on to consider whether, in the present case, a higher standard of investigation and procedure would have made any difference to the outcome and held that it would not.

He also agreed with East Midlands Trains’ barrister, Jason Galbraith-Marten, that European Court of Human Rights case law established that Article 8 cannot be relied upon where the damage to reputation is the foreseeable consequence of one’s own actions.

Partner, Allan Finlay comments:

"This judgment is a welcome affirmation of the band of reasonable responses test for employers and means that Employment Tribunals cannot be asked to substitute their own view of whether a dismissal is fair or unfair for that of the employer. Had the appeal been successful defending unfair dismissal claims would have become much more of a lottery."