X v Y (Employment: Sex Offender)

JUDGE PETER CLARK

1 This is an appeal by the applicant before the Cardiff employment tribunal, whose complaint of unfair dismissal brought against the respondent employer was dismissed by a decision with extended reasons dated 12 July 2002. On 17 July 2002 the Registrar made a restricted reporting order by consent. Accordingly we shall refer to the parties simply as applicant and employer in this judgment.

2 The employer is a UK-based charity promoting personal development among young people. Of particular relevance is work done by the employer in conjunction with local probation services aimed at assisting young offenders and those at risk of offending in the 16–25 year age group. The applicant, who began part-time work with the employer in 1998, became full-time in June 2000 in a post funded by the local probation service. His duties in that post of development officer included liaising with probation officers and working with young people on activities which he organised.

3 In early January 2001, whilst off duty, the applicant pulled into a lay-by where there was a transport café and went to the toilet. There he engaged in consensual sexual activity with a man of about his age whom he had never met before. A police officer came into the toilets, which were open to the public and arrested both men for an offence of gross indecency. The applicant was taken to the police station and, instead of being charged, he accepted a caution.

4 The applicant is homosexual. He had not disclosed his sexual orientation to his family, friends or employer prior to that incident. He chose not to disclose the January incident and subsequent caution to the employer.

5 The employer learned of the events of January in mid July 2001. The applicant was promptly suspended and a disciplinary hearing took place on 27 July before the director of finance (“D”), who gave evidence before the employment tribunal. The applicant was required to attend that meeting by letter dated 20 July from personnel which listed the following matters to be considered:

“(a) That information has come to hand that suggests you committed a criminal offence in January 2001, the details being that you were cautioned for gross indecency in a public place. (b) That you gave false information in your police report, where you stated that your occupation was a sports instructor and that led the police to believe that you worked with adults only. (c) That you have breached your obligation of mutual trust and confidence to the [employer]. (d) That your conduct, being the offence of gross indecency in a public place, although outside your employment has fundamentally damaged the employment relationship between you and the [employer] as your job involves day to day contact with young persons. (e) That your conduct may bring the [employer] into serious disrepute. (f) That taking into account the above points your conduct may constitute gross misconduct.”

6 At the disciplinary hearing, which the employment tribunal found was fairly handled, the applicant read out a statement and submitted letters of support. After consideration D told the applicant that he could not continue with the employer and offered him the opportunity to resign, an offer which the applicant declined. He was then summarily dismissed without notice on grounds of gross misconduct. The applicant entered an internal appeal against that decision but later withdrew it.

7 Before the employment tribunal the applicant's representative, Matthew Bradbury of Lesbian & Gay Employment Rights, addressed an argument to the employment tribunal that in dismissing the applicant there was a breach of his human rights under the Human Rights Act 1998.

8 The employment tribunal dealt compendiously with that submission at paragraph 22 of their reasons thus:

“X suggests that in dismissing him for this offence this breaches the Human Rights Act 1998. X has to understand that there are no stand alone headings of claim which can be brought under the Human Rights Act in the employment tribunal. In any event this court does not have the jurisdiction to make any declaration of incompatibility. In this particular case the tribunal have taken the view that we do not have to go into the minutiae of whether there is, or is not, compliance with the Human Rights Act. Quite simply X's acknowledgment that he should have told his employer of his involvement in this offence and the caution that he received and chose not to do so even after May when he knew that he should have done so strikes us as an acknowledgment by X that he did wrong in withholding that information. Whatever the rights or wrongs of any breach of privacy he acknowledges that he should have done so and chose not to do so.”

9 It follows that the employment tribunal did not decide this case in the context of the Convention rights, rather by reference to what may be called ordinary unfair dismissal law.

10 As to that they found, for the purposes of section 98 of the Employment Rights Act 1996, that the reason for dismissal related to the applicant's conduct, a...