X v Y

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 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.

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 on dismissal for a conduct reason, as laid down by this court and re-affirmed in Foley v. Post Office [2000] ICR 1283:the employer must showthat he believed that there had been misconduct by the employee; that there were reasonable grounds for that belief; that he had carried out as much investigation into the matter as was reasonable in all the circumstances; and that the decision to dismiss him for that conduct reason was within the range of reasonable responses of a reasonable employer.

On the question of Convention rights the employment tribunal heard argument from the applicant’s representative that, in respect of the criminal offence, it was relevant that there was not, at the material time, any corresponding offence which would have been committed by a man and a woman (or by two women) in a place to which the public had, and was permitted to have, access, as in the case of the transport café lavatory. The relevant law, under which the applicant was cautioned, discriminated against men. It was submitted that dismissal for that offence was incompatible with articles 8 and 14 of the Convention and a violation of his Convention rights. It was also submitted that the employment tribunal, as a public authority, had itself acted incompatibly with article 8 by holding a dismissal to be fair in circumstances where it violated the right to respect for private life.

The employment tribunal dealt with the HRA point in paragraph 22 of the extended reasons-

“22.

X suggests that in dismissing him for this offence this breaches the Human Rights Act. 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 acknowledgement that he should have told his employers 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 strikes us as an acknowledgement by X that he did wrong in withholding that information. Whatever the rights and wrongs of any breach of privacy he acknowledges that he should have done so and chose not to do so.”

The appeal tribunal held in its judgment delivered on 11 June 2003 that the approach re-affirmed by this court in Foley applied to the applicant’s claim for unfair dismissal. It rejected the submission that the decision of the employment tribunal was perverse either (a) in holding that the summary dismissal fell within the range of reasonable responses, notwithstanding that it was alleged to be a breach of the applicant’s Convention rights, or (b) in concluding that non-disclosure of the offence made the matter very serious as far as the respondent saw the case.

As for the HRA point, the appeal tribunal proceeded on the basis that s 3 of the HRA applied, so that s98(4) of the ERA must be interpreted, so far as is possible, compatibly with Convention rights. The notion, however, that there was to be implied into every contract of employment a term that a private employer is bound to comply with Convention rights was rejected. The appeal tribunal focused on the question whether there was any potential breach of articles 8 and 14 on the facts of this particular case.

It was held that article 8 did not apply, as the conduct in question was not private. It was a “transitory sexual encounter” between two strangers in a public lavatory and was not covered by the right to “respect for private life.” As for the anti-discrimination provisions of article 14, it was accepted that they apply to discrimination on the grounds of sexual orientation, but the appeal tribunal held they do not operate independently of Convention rights. Even if they did, there was in fact no discrimination against the applicant, as it was his criminality and his lack of transparency, and not his sexuality, which were the grounds of the decision to dismiss him for a conduct reason.

Once it had decided that no breach of Convention rights was involved, the appeal tribunal concluded that the employment tribunal was right to interpret and apply s98(4) ERA by reference to ordinary Foley principles. On that approach the appeal failed. As already indicated, it rejected the applicant’s perversity point attacking (a) the finding of fact that the applicant’s non-disclosure of the caution was a relevant factor in the respondent’s decision to dismiss the applicant; and (b) the holding that the decision to dismiss, which was not taken on the grounds of the applicant’s sexuality, was within the range of reasonable responses, notwithstanding the “good work and success achieved by the employee during his employment.” The respondent was faced with an employee

“…who (a) was employed in a position which required him to lead by example and in co-operation with the local Probation Service, youngsters who were already young offenders or who were at risk of offending; to that extent he was something of a role model; (b) had committed a criminal offence, which he accepted was relevant to his employment and (c) had chosen not to disclose that fact to his employer.”

The Opposing Submissions

The HRA point was rightly at the forefront of the applicant’s submissions. It is, in my judgment, the only arguable question of law raised by this appeal. If the HRA point is relevant to the determination of the applicant’s unfair dismissal claim, then a question of law arises from the employment tribunal’s treatment of the HRA point in paragraph 22 of its extended reasons (see para 20 above). In the absence of a relevant question of law under the HRA, no other question of law arises from the tribunal’s application of well settled principles of employment law to the facts found by the tribunal: see the earlier unfair dismissal cases on similar facts in Gardiner v. Newport County BC [1974] IRLR 262; Nottinghamshire CC v. Bowly [1978] IRLR 252; Wiseman v. Salford CC [1981] IRLR 202; and P v. Nottinghamshire CC [1992] IRLR 362.

In brief, the applicant’s case on the HRA point is that the employment tribunal misdirected itself in law in concluding that the HRA was irrelevant to determining the issues before it and that the case should be remitted for re-hearing by a different tribunal. It is accepted that the jurisdiction of the employment tribunal is limited by statute and that it is not an appropriate court or tribunal: (a) in which to bring proceedings under s 7 of the HRA asserting a claim against a public authority for acting incompatibly with a Convention right contrary to s6 of the HRA; or (b) in which to seek a declaration of incompatibility of primary legislation with a Convention right under s 4 of the HRA. On those points the employment tribunal correctly stated the legal position in paragraph 22 of its extended reasons. But, as Ms Monaghan pointed out, the claim made by the applicant was not within either of those categories. She submitted that it did not follow from absence of tribunal jurisdiction over proceedings under s 4 or s7 of the HRA that the HRA was irrelevant to the tribunal’s determination of the applicant’s claim for unfair dismissal under the ERA. The tribunal had not appreciated the importance of s3 of the HRA in interpreting the provisions of the ERA so as to be compatible with article 8 of the Convention. In consequence the tribunal had not properly considered the question of the dismissal as an interference with the right to respect for private life under article 8.1 or the question whether such an interference was justified under article 8.2

Ms Monaghan submitted that the combined impact of s3 and s6 of the HRA was that it was not open to the employment tribunal to find that the dismissal of the applicant was fair and reasonable under the ERA without first determining whether his dismissal engaged a Convention right and, if so, whether any interference with the applicant’s Convention rights was justified, having regard to the proper test of justification under article 8.2 and to article 14 of the Convention. That inquiry involved issues of the necessity for, the legitimate aim of and the proportionality of the interference with the Convention right, the interference in this case being the dismissal of the applicant for a reason relating to his conduct in his private life. In short, the employment tribunal had erred in law in failing to address any of the HRA issues.

The essence of the respondent’s position was that it was never relevant for the employment tribunal to address issues under the HRA when determining a claim for unfair dismissal against a private sector employer under the ERA. As the respondent is not a “public authority” within s 6 of the HRA, it is not unlawful for it to act (for example, in dismissing an employee for a conduct reason) in a way which is incompatible with a Convention right. The Convention right to respect for private life in article 8 was not engaged. No question could arise of the respondent having acted incompatibly with it or having to justify its act of dismissing the applicant, otherwise than under the unfair dismissal provisions of the ERA.

It was also submitted that, even if article 8 could be engaged in the case of a private employer in the way suggested by the applicant, article 8 did not apply in this case, as the dismissal of the applicant for his conduct did not involve a breach of his right to respect for his private life. The reason for his dismissal was not conduct by the applicant in his private life. The conduct had occurred in a place to which the public had, and were permitted to have, access. A criminal offence had been committed and the applicant had been cautioned by the police for it.

The Relevant Law

In order to resolve the HRA point it is convenient to gather together at this stage all the relevant Convention articles and the provisions of the HRA and of the ERA so that they can be read alongside one another.

Article 8 of the Convention, which is set out along with the other Convention Rights in Schedule 1 to the HRA, is in the following terms:

“ 1.Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14 prohibits discrimination in the following terms:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Section 3(1) of the HRA provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights

Section 6 provides that:

“(1)

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(3)

In this section “public authority” includes-

(a)

a court or tribunal,….”

Section 7 provides that a person who claims that a public authority has acted in a way which is made unlawful by section 6(1), may bring proceedings against the authority under the HRA in the appropriate court or tribunal.

Section 98 of the ERA provides:

“(1)

In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a)

the reason (or, if more than one, the principal reason) for the dismissal, and

(b)

that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2)

A reason falls within this subsection if it-

(a)

[Not applicable]

(b)

relates to the conduct of the employee.

(4)

Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

(a)

depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b)

shall be determined in accordance with equity and the substantial merits of the case.”

The Scope and Applicability of Article 8

Section 2 of the HRA requires a court or tribunal determining a question which has arisen in connection with a Convention right to take into account any judgment, decision or opinion of the relevant institutions (the European Court of Human Rights and the Commission)

“ so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which the question has arisen.”

Thus, it is relevant to note that, if article 8 can be engaged in the case of a dismissal by a private sector employer, the right to respect for private life has been interpreted by the Strasbourg institutions to cover a person’s “sexual orientation and sexual life” and the right of a person to establish relationships with others. A person’s reasonable expectations of privacy may extend beyond the confines of the home and of private premises to a public space or context. As Hale LJ said in Pearce v. Mayfield School [2002] ICR 198

“15.

Sexual behaviour is undoubtedly an aspect of private life, indeed a most intimate and important aspect of private life. Any interference by the state can only be justified under article 8(2).”

“17.

Even without any positive obligation, it is evident that that respect goes further than simply refraining from interference with what goes on in the privacy of the home.”

The European Court of Human Rights discussed the jurisprudence on the scope of article 8 in PG and JH v. UK (Application No. 44787/98: judgment 25 September 2001)-

“56.

Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. The Article also protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world…..There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life.”

57.

There are a number of elements relevant to a consideration of whether a person’s private life is concerned in measures effected outside a person’s home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person’s reasonable expectations as to privacy may be a significant, though not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example a security guard viewing through closed circuit television) is of a similar character…”

Further, although the essential purpose of article 8 is to protect individual citizens against arbitrary interference by the state and by public authorities, that is not, according to decisions of the Strasbourg Court, the only possible area of application. The state may have positive obligations, which extend to securing respect for private life in the sphere of relations between individuals. There are Strasbourg authorities on the point whether the Convention is relevant only to cases involving the state and public authorities, or whether it can also be relevant to cases between private individuals, such as private sector employers and employees.

Ms Monaghan cited Botta v. Italy (1998) 26 EHRR 241 at paragraphs 31-35. In that case there was a complaint under article 8 on disability discrimination in the absence of State measures requiring the installation of disabled facilities enabling access to private beaches and to the sea. The case was relied on for the proposition that, although the Court held that article 8 was not applicable on the facts of that case, the state has positive obligations under article 8, which involve the adoption of measures designed to secure respect for private life in the sphere of relations of individuals between themselves.

In Zehnalova v. Czech Republic (Judgment 14 May 2002), a complaint of disability discrimination in the lack of provision of facilities for disabled access to public buildings, the Court summarised the current Strasbourg jurisprudence as follows (at p 11)-

“The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference since it may also give rise to positive obligations inherent in effective “respect” for private and family life. While the boundaries between the State’s positive and negative obligations under this provision do not always lend themselves to precise definition, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State enjoys a certain margin of appreciation…

The positive obligations under Article 8 of the Convention may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves…Since the concept of respect is not precisely defined, States have a wide margin of appreciation regarding the choice of the means to be employed to discharge the obligations set forth in the relevant legislation.

The Court has held that a State has obligations of this type where it has found a direct and immediate link between the measures sought by an applicant and the latter’s private and/or family life…It points out that in the Botta judgment it held that Article 8 of the Convention was not applicable to situations concerning interpersonal relations of such broad and indeterminate scope that there could be no conceivable direct link between the measures the State was urged to take and the applicant’s private life.”

The Impact of the HRA on the ERA

The HRA has generated a good deal of litigation on the uncertainties of its scope of application, such as whether it applies to proceedings commenced or to causes of action arising before it came into force. It has generated more legal literature than litigation on the disputed question whether it applies as between private individuals.

The terminology of vertical effect (State/citizen) and horizontal effect (citizen/citizen), which is familiar in European Community law, has been used in the debate on the applicability of the HRA to disputes between private citizens. In the year 2000 a wide range of views was published in the Law Quarterly Review. Sir William Wade (whose writings have been of immense influence in the development of English Law over the last 40 years and whose death a few weeks ago was a great loss to legal scholarship) argued that the HRA has horizontal effects between individuals: vol 116 LQR at 217. He was responding to Sir Richard Buxton, who argued that the HRA only has vertical effect between public authorities and individuals: vol 116 LQR 48. Lord Lester of Herne Hill QC and Mr David Pannick QC suggested that the HRA did not “confer complete or automatic horizontality” and that Convention rights will significantly influence private law in a more sophisticated way than is indicated by a simple horizontal effect: :vol 116 LQR 380. Other writers have put the arguments for “indirect horizontality” of the HRA. See, for example, [1998] Public Law 423 (Murray Hunt), (1999) CLJ 159 and [2001] 117 LQR 34 (Nicholas Bamforth); [1999] 62 MLR 824 (Gavin Phillipson).

The academic debate continues. The general question of horizontality has not yet been resolved by a court. Indeed, it may never be resolved judicially at the same high level of abstraction on which the debate has been conducted for the most part in the law books and legal periodicals. The facts of particular cases and the legal contexts in which they fall to be decided tend to put very general propositions into a more limited and manageable perspective.

That process has already begun with the horizontality question, as appears from the recent decision of the Court of Appeal in Ghaidan v. Godin-Mendoza [2003] Ch 380 (a case on discrimination on grounds of sexual orientation, which, we have been told by counsel, is under appeal to the House of Lords, the Secretary of State now intervening on the issues of incompatibility and construction), in which it was conceded (see para 5) that the court was obliged to construe the Schedule to the Housing Act 1998 in litigation between two private individuals in a way that was compatible with the Convention rights. The concession was made in the light of the decision of the Court of Appeal in Wilson v. First County Trust Ltd (No 2) [2002] QB 74, a decision which has since been reversed by the House of Lords on a different point, which made it unnecessary to address the horizontality issue.

In the context of the concession Buxton LJ said (para 5)

“In some cases that obligation [referring to the s3 obligation to construe legislation compatibly with Convention rights] will not affect the outcome, since Convention rights are, in their origin and meaning, only exigible against the state. That difficulty does not however arise in respect of article 14, since in its terms it imposes on the state not merely a duty to refrain from certain conduct in relation to its citizens, but also a positive obligation to “secure” to those citizens the enjoyment of Convention rights without discrimination. Accordingly, in construing the Schedule in the context of article 14 we have to ask whether that legislative act, construed in domestic law as it was in Fitzpatrick’s case, does indeed secure to citizens the relevant freedom from discrimination.”

In a concurring judgment Keene LJ, after mentioning the concession that the Convention was relevant in litigation between private individuals, referred to the duties of the court under ss3 and 6: see paras 37 and 38. He also noted (in para 38) that

“Strasbourg jurisprudence has recognised that in certain instances there may be a positive obligation on the state to secure the observance of such rights. Article 8 has been one of those instances: see X and Y v. The Netherlands (1985) 8 EHRR 235, 239-240.”

This judgment is confined to considering the scope and effect of article 8 and the impact (if any) that it has on the facts of this case via s3 of the HRA. It also attempts to give some practical guidance to employment tribunals, which have to deal with unfair dismissal cases day in, day out, often without the help of submissions on legal issues from professional representatives. Some unfair dismissal cases naturally attract arguments based on Convention rights and the HRA: the employee dismissed for refusing, on religious grounds, to work on a particular day (article 9); the employee dismissed for engaging in party politics (article 10); or the employee whose activities, even in the privacy of his own home, may constitute a criminal offence and lead to dismissal (article 8). In general, whenever HRA points are raised in unfair dismissal cases, the employment tribunals should properly consider their relevance, dealing with them in a structured way (though not necessarily at great length), even if it is ultimately decided that they do not affect the outcome of the claim for unfair dismissal.

Conclusion

There is a short answer to the HRA point on the facts of this case. The longer answer attempts to explain the general legal framework within which employment tribunals should deal with HRA points in unfair dismissal cases.

The short answer to the applicant’s case was correctly given in the decisions of the tribunals below: article 8.1 is not engaged, as the facts found by the employment tribunal do not fall within its ambit. The verb “engage” is not Strasbourg terminology nor is it in the HRA. It is used in the preliminary sense identified by Lord Hope in Harrow London Borough Council v. Qazi [2003] 3 WLR 792 at paragraph 47: “the applicability or relevance in any way at all” of the Convention right to the facts, events or circumstances involved in the particular case, in respect of which a Convention right has been invoked. The question of applicability is prior to, and distinct from, the question of a possible breach of the Convention right.

The applicant’s conduct did not take place in his private life nor was it within the scope of application of the right to respect for it. It happened in a place to which the public had, and were permitted to have, access; it was a criminal offence, which is normally a matter of legitimate concern to the public; a criminal offence is not a purely private matter; and it led to a caution for the offence, which was relevant to his employment and should have been disclosed by him to his employer as a matter of legitimate concern to it. The applicant wished to keep the matter private. That does not make it part of his private life or deprive it of its public aspect.

A fuller explanation of the overall legal position may assist employment tribunals in other unfair dismissal cases to deal with issues of Convention rights in a more structured way than the employment tribunal did in this case. In this difficult and developing area of the law even some self-evident propositions need to be stated.

The starting point in this case, as with all private law cases, is the applicant’s cause of action.

The applicant invoked articles 8 and 14 of the Convention in relation to his cause of action in private law.

The cause of action under s94 of the ERA and the alleged interference with article 8 are based on the conduct reason for the applicant’s dismissal.

In the case of private employers s3 is more relevant than s6 of the HRA, which expressly applies only to the case of a public authority.

There is a public authority aspect to the determination of every unfair dismissal case.

How does s3 of the HRA affect the interpretation of s98 in cases falling within articles 8 and 14? It is not easy to provide a short and simple answer to this question. I have, however, concluded that in some cases it has some effect. The effect is more accurately described as oblique, rather than as directly or indirectly horizontal. By a process of interpretation the article 8 right is blended with the law on unfair dismissal in the ERA, but without creating new private law causes of action against private sector employers under the HRA or the ERA.

Discriminatory Offence

Ms Monaghan also advanced an argument based on the discriminatory nature of the provisions in the Sexual Offences Act 1967, under which it was a criminal offence for two men to commit the act in question in a public lavatory, but not for a man and a woman or for two women to commit the act in the same circumstances. (The difference in treatment has now been removed and replaced by the gender-neutral provisions of s 71 of the Sexual Offences Act 2003, which makes it an offence for a person to engage in sexual activity in a lavatory to which the public or a section of the public has or is permitted to have access.) It was submitted that the dismissal involved a violation of the anti-discrimination provisions of article 14 and was unfair, being based on a caution for an offence, which violated article 14 by discriminating against a man on the ground of his sexual orientation. The tribunal, it was submitted, should have interpreted s98(4) of the ERA to take account of the fact that the State had failed in its obligation to secure non-discriminatory treatment in the Sexual Offences Act for men in respect of the article 8 right.

I am unable to agree with the submission. As explained in Ghaidan at para 40 article 14 only comes into play if the facts of the case fall within the ambit of one or more of the substantive Convention provisions. This case does not fall within the ambit of article 8, because the dismissal of the applicant for the offence did not have a sufficient link with his right to respect for “private life.” The conduct in question was in a public place and outside article 8. That reason alone is sufficient to dispose of the point.

I suggest two more reasons for rejecting the submission. First, the conduct reason for the dismissal included the applicant’s failure to disclose to the respondent the caution, which he should have disclosed as a matter relevant to his employment. Secondly, as at present advised, I am very doubtful whether the respondent has infringed the applicant’s rights under articles 8 and 14 by relying on the caution for the offence as part of the conduct reason for the decision to dismiss. Whatever may be the position of the State with regard to the enforcement of legislation which violates a Convention right, the respondent private employer was entitled to treat the caution as an acceptance that a criminal offence had been committed and as gross misconduct within the disciplinary code, so long as the provisions in the 1967 Act remained on the statute book.

I would dismiss the appeal as there was no error of law in the decision of the Employment Tribunal that the dismissal of the applicant was fair and that his dismissal did not involve a violation by the respondent of article 8 and article 14.

As indicated earlier, it is advisable for employment tribunals to deal with points raised under the HRA in unfair dismissal cases between private litigants in a more structured way than was adopted in this case. The following framework of questions is suggested -.

I agree that this appeal should be dismissed for the reasons given by Mummery LJ. Section 3(1) of the Human Rights Act 1998 (“HRA”) requires legislation, so far as possible, to be read and given effect in a way which is compatible with Convention rights. I recognise that there is an argument that section 3(1) does not come into play at all where the dispute is between private litigants. It can be said that, because private litigants do not have Convention rights as against each other, there is no obligation to construe legislation in accordance with Convention rights in private litigation.

In my view, however, the interpretative duty imposed by section 3 applies to the same degree in legislation applying between private parties as it does in legislation which applies between public authorities and individuals. There is nothing in the HRA which, either expressly or by necessary implication, indicates a contrary intention. If the position were otherwise, the same statutory provision would require different interpretations depending on whether the defendant was a public authority or a private individual. I acknowledge that parliament could, without perversity, have intended such a distinction. After all, public authorities are, but private entities are not, subject to sections 6 and 7 of the HRA, and yet the dividing line between public authorities and private entities is sometimes very fine, and can lead to distinctions which may appear to lead to somewhat arbitrary results. Nevertheless, sections 6 and 7 show that parliament was alive to the distinction between public authorities and private entities, and yet drew no distinction when it came to enacting section 3. In my judgment, the language of section 3(1) is plain: it should be accorded its clear and unqualified meaning.

The central question in the present case is whether X’s article 8 rights were engaged at all. In my judgment, they were not. It is not in dispute that private sexual behaviour and orientation is a most intimate and important aspect of private life: see, for example, Pearce v Governing Body of Mayfield Secondary School [2002] ICR 198 para 15 per Hale LJ. Moreover, as Hale LJ pointed out at para 17, a person’s right to respect for his or her article 8 rights goes beyond the right simply not to suffer interference with what goes on in the privacy of the home. But although the nature of the activity is crucial, its location may also be relevant. I would accept the submission of Mr de La Mare that it does not follow that any action consequent upon an individual engaging in sexual activity will always engage that person’s article 8 rights. For example, an employer who disciplines two employees (irrespective of their orientation) for openly indulging in inappropriate sexual behaviour at work does not interfere with their private life. In such circumstances, the employees have no expectation of privacy. A person’s reasonable expectations as to privacy may be, and I suggest usually is, a significant factor: see PG and JH v UK (Application No 4478/98). In Campbell v MGN Ltd [2004] 2 WLR 1232, UKHL 22 para 21, Lord Nicholls said:

“Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.”

In Peck v UK (2003) 36 EHRR 719, the ECtHR said at para 57:

“[Art 8] also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with other, even in a public context, which may fall within the scope of “private life”” (emphasis added).

This is the widest statement of the ambit of privacy expectations to which our attention was drawn. But even Peck does not support the proposition that, subject only to article 8.2, a person has an untrammelled right under article 8.1 to give expression to his or her sexuality in public.

Whether a person’s article 8 rights are engaged will depend on the facts of the particular case. In the context of sexual activity, the reasonable expectations of the participants will be highly material. Those expectations will be influenced both by the nature of the activity and the place where it is conducted. In the present case, the sexual activity was transitory, and took place in a public lavatory between two strangers. Moreover, whatever the precise nature of the sexual activity, it was sufficient to amount to gross indecency. In my judgment, neither of the participants could have had a reasonable expectation of privacy in those circumstances. They might have hoped, and possibly even expected, that what they were doing would not be seen by anyone else. But in my judgment, that is not sufficient to lead to the conclusion that they were exercising article 8 rights.

In Theakston v MGN Ltd [2002] EMLR 398, Ouseley J said in relation to the question of confidentiality:

“59….Whilst the degree of intimacy is a very relevant factor, it cannot be taken in isolation from the relationship within which the physical intimacy occurs and from the other circumstances particularly the location….

60.

Sexual relations within marriage at home would be at one end of the range or matrix of circumstances to be protected from most forms of disclosure; a one night stand with a recent acquaintance in a hotel bedroom might very well be protected from press publicity. A transitory engagement in a brothel is yet further away.”

This passage was quoted with approval by this court in A v B plc [2002] EWCA Civ 337, [2003] QB 195, para 43(ii). It is true that the factual matrix in these cases was different from that which exists in the present appeal: they were concerned with the question of disclosure and the balance between article 8 and article 10 rights. But the discussion about the scope of the article 8.1 right seems to me to be of considerable relevance to the present case. For these reasons, as well as those given by Mummery LJ, I would hold that X’s article 8 rights were not engaged on the facts of this case.

In any event, if it had been necessary to do so, I would have held that that Y’s behaviour in dismissing X was clearly justified under article 8.2. The assumed interference with X’s article 8 rights was in accordance with the law, since it was based on offences under the Sexual Offences Act 1956 (as amended), and the Employment Rights Act 1996; and the interference was in pursuit of Y’s legitimate interests. These included that Y was entitled to ensure the success of its activities, and to that end to be assured of appropriate standards of conduct by its employees. Y was entitled to have regard to the fact that X occupied a position of considerable responsibility, having in his care vulnerable children and young adults, and had a role model status.

So far as article 14 is concerned, I accept that the fact that there has been no breach of article 8 is not decisive, since all that is required is that “the facts at issue fall within the ambit” of article 8: see Abdulaziz Cabales and Balkandali v UK (1985) 7 EHRR 471 para 71. The ECtHR has used a number of expressions to describe the degree to which a substantive right must be in play before article 14 is engaged. Thus, it has been said that it is engaged whenever “the subject matter of the disadvantage…constitutes one of the modalities of the exercise of a right guaranteed, or the measures complained of are “linked to the exercise of a right guaranteed”: see Petrovic v Austria (1998) 4 BHRC 232 para 28. In my judgment, there must, therefore, be a real link between the right sought to be exercised and the alleged discrimination. For the reasons that I have given earlier when concluding that article 8.1 was not engaged on the facts of this case (as well as those given by Mummery LJ at para 62 of his judgment), I would hold that article 14 does not avail X.

On a Saturday in January 2001 X went out for a day with a friend. He drove home by himself in the dark and on his way home he pulled his car into a lay-by where there was a transport café in order to use the toilet. This was situated on a road between two towns. There was only one other car parked in the lay-by.

He went into the toilet where he met another man whom he did not know. There is no evidence at all as to the structural features of this toilet. The man approached him and they began to engage in sexual activity. While they were so engaged, a police office came into the toilet and arrested them both. It later transpired that this officer had parked his car behind the transport café and was stationed on the other side of a hedge. The police officer then radioed to the police station, and while they were waiting for another officer to arrive, he told X that he was going to be cautioned. X was then driven to the police station. He was feeling very shocked and frightened. He was put in a cell on arrival.

He was then interviewed by the arresting officer. The interview was taped. Before the interview started, he was again told that he was going to be cautioned. He was also told that nobody outside the interview room would know about the incident apart from the custody sergeant, unless he reoffended within five years. He declined the services of a duty solicitor when they were offered to him.

He told the employment tribunal that the officer said that nobody outside the room would know about the incident apart from the custody sergeant unless he re-offended within the next five years. When the interview was completed, the appellant was given a caution for gross indecency. He was then allowed to go home. This was his account of what happened.

We were not told what Home Office Guidance was current in January 2001. Home Office Circular 18/94 provided (in para 2):

“Decision to caution

A formal caution is a serious matter. It is recorded by the police; it should influence them in their decision whether or not to institute proceedings if the person should offend again; and it may be cited in any subsequent court proceedings. In order to safeguard the offender’s interests, the following conditions must be met before a caution can be administered. There must be evidence of the offender’s guilt sufficient to give a realistic prospect of conviction; the offender must admit the offence.”

As a consequence of the administration of the caution, X’s name was placed on the Sex Offenders Register (see section 1(1)(c) and Schedule 1, para 1 of the Sex Offenders Act 1997). The incident therefore came to the attention of the Probation Service reasonably soon.

We do not know what the outcome would have been if X had been advised to take proceedings similar to those taken by the two 15-year old claimants in the cases reported under the name of R(U) v Commissioner of Police of the Metropolis [2002] EWHC 2486 (Admin); [2003] 1 WLR 897. In its judgment in those two cases the Divisional Court held that the modern arrangements for police cautions or warnings engaged Article 6 of the European Convention of Human Rights if they had consequences similar to those that followed in all three of these cases. A person might only waive his right to have his case dealt with by a court if he had full knowledge of the consequences before he made any admission (see paras 36-39).

Nor, of course, do we know whether, if a CPS prosecutor had decided in the exercise of his discretion whether to prefer a criminal charge against X which had then led to a conviction, the decision to prosecute or the conviction would have been successfully challenged on the grounds that whatever the 1967 Act might say, X’s acts should properly be characterised as private acts performed in the exercise of his Article 8(1) rights, and there was no justification for charging him and convicting him in the particular circumstance of his case. We do not know enough about the circumstances in which his acts were committed, and it might have been argued that they only lost their characteristics as private acts because a police officer was hiding behind the hedge.

I refer to the particular circumstances of the present case because he told his employers that the incident had happened in “a deserted remote toilet in the middle of nowhere”, it was a dark January evening, and there was only one other car in the lay-by.

It might also have been argued that there was unlawful discrimination against X pursuant to Article 14 because the 1967 Act only criminalised consensual homosexual activities between adult males in a public lavatory. As Dyson LJ has observed, there does not have to be a breach of another article of the Convention for Article 14 to be engaged, so long as the matter complained of falls within the ambit of another article, and a court might take the view that some such activities might properly be characterised as having the necessary attributes of privacy, such that the state should not interfere.

It appears to me that really live human rights issues may well be lurking in the background of this particular case, and I am unable to agree, without a greater understanding of the facts, with the short answer suggested by Mummery LJ in paragraphs 51 and 52 of his judgment. The legal validity of the procedure, however, was never challenged, and in the events that happened it seems to me inevitable that X’s employers should be entitled to treat the events surrounding the police caution as being tantamount to the admission of a criminal offence and to proceed accordingly. The administration of employment law would become extremely difficult if employers had always to look behind what appeared to be a valid caution for a notifiable sexual offence to explore if it might have been challengeable on ECHR grounds.

In other words, the difficulties in this case lie in the field of criminal practice and procedure, and I expressly refrain from speculating what the outcome might have been if X had made his challenge there.

I agree, however, that the appeal should be dismissed for the reasons set out by Mummery LJ in paragraph 62 of his judgment. The employers were entitled to treat the caution as an admission by X that he had committed a sexual offence in a public place and that there were no surrounding circumstances that clothed his acts with the mantle of privacy. They were also entitled to conclude that he should have drawn the matter to their attention, and to treat it as a matter constituting gross misconduct for the purposes of their disciplinary code. I do not consider that a private employer has an obligation to conduct an investigation into the events and procedures leading up to such a caution, at any rate so long as they are not put on notice that something may have gone significantly awry.

I also agree with the guidance Mummery LJ has suggested for the future.

I, too, would therefore dismiss this appeal.