X v Y (Employment: Sex Offender)

JurisdictionEngland & Wales
JudgeLord Justice Mummery,Lord Justice Dyson,Lord Justice Brooke
Judgment Date28 May 2004
Neutral Citation[2004] EWCA Civ 662
Docket NumberCase No: A1/2003/1415
CourtCourt of Appeal (Civil Division)
Date28 May 2004
Between :

[2004] EWCA Civ 662

Before :

Lord Justice Brooke

(Vice President of The Court of Appeal (Civil Division))

Lord Justice Mummery and

Lord Justice Dyson

Case No: A1/2003/1415





Royal Courts of Justice


London, WC2A 2LL

MS KARON MONAGHAN (instructed by Liberty, 21 Tabard Street, London SE1 4LA) for the Appellant.

MR THOMAS DE LA MARE (instructed by Messrs Bates Wells & Braithwaite Solicitors, Cheapside House, 138 Cheapside, London EC2V 6BB) for the Respondent.

Lord Justice Mummery

General Introduction


The novel point in this appeal concerns the combined impact of s3 ("Interpretation of legislation") and s6 ("Acts of Public Authorities") of the Human Rights Act 1998 (the HRA) on the determination of an unfair dismissal claim brought against a private sector employer under Part X of the Employment Rights Act 1996 (the ERA).


On 18 October 2001 the applicant presented to the employment tribunal a complaint that he had been unfairly dismissed by the respondent. He added a complaint of sex discrimination, but subsequently withdrew it. The employment tribunal (sitting at Cardiff) rejected the unfair dismissal claim in extended reasons sent to the parties on 12 July 2002.


On 11 June 2003 the employment appeal tribunal (HHJ Peter Clark presiding) dismissed the applicant's appeal. The applicant then applied to this court for permission to appeal. The application was adjourned for the consideration of the full court, with the appeal to follow immediately, if permission were given.


Both sides agree that a general point of some significance is raised by the applicant's contentions that the law of unfair dismissal in the ERA has been altered by the HRA, that his dismissal involved a violation of the right to respect for private life in article 8 of the European Convention on Human Rights (the Convention) and that his dismissal was accordingly unfair.


The court is indebted to counsel for their assistance. Ms Karon Monaghan, appearing for the applicant, put the HRA point in this way:

"This appeal raises the important question whether the current test of "fairness" as provided for in Post Office v. Foley [2000] IRLR 827 can now be regarded as correct as a matter of law where a Convention right is engaged by the dismissal complained of."


Mr Thomas de la Mare, appearing for the respondent, put the HRA point in a wider perspective:

"This is a case that raises important issues about the "horizontality" of the Human Rights Act 1998…and about the extent of positive obligations owed by the state to protect an individual's private life from unjustified interference by private persons, including employers."


At the outset of the hearing the court gave permission to appeal on the ground that the HRA point, whichever way it is put, is a "compelling reason why the appeal should be heard" ( CPR Part 52.3(6) (b)). The Court also granted the applicant's unopposed request to continue the restricted reporting order made by the employment tribunal under rule 16 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2001, which confers a discretion to restrict reporting in a case involving "allegations of sexual misconduct." So far, the case has been listed and reported as X v Y, but, adopting the terminology used by the employment appeal tribunal in its judgment, I shall call the employee "the applicant" and the employer "the respondent."


There is a risk that the role of the tribunals and courts will not be clear to all readers of reports of this litigation. The legal issues before the courts and tribunals in this case are not about the enforcement of personal morality by an employer or by the court; nor are they about the subjection of a member of a minority group to unlawful discrimination or victimisation. The case is about the statutory right of the applicant, as an employee, not to be unfairly dismissed from his job by his employer, the respondent. The function of the employment tribunal was to decide whether, on the evidence presented to it and on the application of the objective statutory standards of reasonableness, fairness, equity and substantial merit set by the ERA to the facts found, the dismissal of the applicant was unfair and in violation of his rights under the ERA and the HRA.


In a claim for unfair dismissal the employment tribunal, the appeal tribunal and this court must all resist the temptation to substitute themselves as the applicant's employer, which they were not. In the case of an appeal to the employment appeal tribunal or to this court, which is limited by statute to questions of law, the appellate bodies must resist the temptation to substitute themselves for the fact-finding employment tribunal, which they are not.

The Facts


The applicant was born in 1974. In 1998 he started to work as a part time development officer for the respondent, a charity concerned with voluntary work. It aims to promote the personal development of young offenders and those at risk of offending in the 16–25 age group. It works on confidence building and raising self-esteem, setting individual programmes and organising leisure activities.


The applicant was a highly regarded employee working closely with young people. In June 2000 he was appointed to the full time post of a Development Officer funded by the local Probation Service. It was a position of trust and responsibility. He worked in conjunction with the local Probation Service. He also worked with secondary schools, the sea cadet service, in which he had previously been an instructor and Chief Petty Officer, and industry.


In mid-July 2001 the respondent discovered that six months previously, in January 2001, the appellant had been arrested and taken to a police station in connection with an incident, which occurred when he was off duty and away from the workplace. He was not charged, but received a caution, which was accepted and signed by him, for committing a sex offence with another man in a transport café lavatory, to which the public had, and were permitted to have, access. The caution came to light as a result of normal police checks made by the local Probation Service before providing further funding to the respondent.


By signing the caution the applicant acknowledged that he had committed a criminal offence contrary to s13 of the Sexual Offences Act 1956, as amended by the Sexual Offences Act 1967. Under s1(2) (b) of the 1967 Act the consensual act of the applicant was not treated as being done "in private" within the meaning of the decriminalising provisions of the 1967 Act.


The applicant kept quiet about the caution. He took no action about it. His family, the majority of friends and his employer did not know about his sexual orientation. He made a deliberate decision not to disclose the offence to the respondent. Although he later contended that he had the right not to inform the respondent about the caution, his evidence to the tribunal was that he knew by May 2001 that he should have disclosed it, as it was relevant to his job. The tribunal rejected his evidence that he had not had an opportunity to inform his line manager.


The respondent suspended the applicant pending further investigation. Following a disciplinary hearing before the Director of Finance on 27 July 2001, the applicant was summarily dismissed on 30 July 2001 on grounds of gross misconduct. He declined the offer of an opportunity to resign. He has not alleged that the disciplinary hearing was conducted unfairly or in a homophobic manner. The Director of Finance explained to him that the issue was not one of his sexuality, but of his having committed a significant criminal offence and then deliberately deciding not to disclose it. The respondent's disciplinary code provided that it was gross misconduct to commit a criminal offence, which made the employee unsuitable for employment.


Although the applicant initiated an internal appeal, he later decided not to follow it through and withdrew it. Instead, he began proceedings in the employment tribunal, contending that he was unfairly dismissed and in a manner inconsistent with respect for private life under article 8 of the Convention and in breach of the prohibition of discrimination in article 14 of the Convention on grounds of sexual orientation.

Decision of Employment Tribunal


The employment tribunal found that the disciplinary hearing was fairly handled, that the dismissal was for a conduct reason (s98(2) (b) ERA) and that it was fair and reasonable for the respondent to treat it as a sufficient reason for dismissing him ( s98(4) ERA). The conduct in question was that he had committed a criminal offence, which was not trivial in nature; that he had acted unwisely; that he had shown an inappropriate lack of self control and serious lack of judgment, which had a direct bearing on his employment ("working with youngsters who can only be described as potentially vulnerable") ; that, given the sector in which he was employed, his failure to tell his employer about it was a serious matter; and that his conduct had undermined the respondent's trust and confidence in him.


As to the fairness of the dismissal, the tribunal held that it was within the range of reasonable responses to treat the conduct as gross misconduct and to apply the sanction of dismissal for it. That sanction was ultimately not challenged by the applicant, who had withdrawn his internal appeal against the dismissal. The tribunal explained that it was applying the law...

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