HRA and Dismissal Flashcards
What are the main ECHR cases regarding dismissal?
“Important bc HRA s3
Article 10: Dismissal for political opinions, expression (Palomo-Sanchez v Spain)
Article 11 : Dismissal for freedom of association- (Redfearn v UK)
Article 8
- because dismissal based on private life at or outside work (Pay v UK) (Barbulescu v Romania)
- infringe private life because of its effects (Volkov v Ukraine)”
can interpret s.98(4) if necessary in accordance with Art 8
“X v Y -> Turner v East
domestic law accords with Article 8 because ‘the band of reasonable responses allows for a heightened standard to be adopted where those consequences [for the employee] are particularly grave’.
Note: Astrid Sanders - there has been ‘remarkable continuity’ between pre-HRA cases and more recent judicial statements.There is an ongoing reluctance to engage thoroughly with questions of human rights
Workaround: . Keith Ewing argued that an employer would not be acting reasonably in treating a reason that breaches a Convention right as a reason for dismissal.
EU: Barbelescu & Pay v UK”
on decision to dismiss re: ECHR in UK ART 8
“The Court has repeatedly ruled that human rights have horizontal effect in the employment relation, and some of the relevant case law involves dismissal by private employers.
Turner v East Midlands Trains
- Only need “most careful investigation” if serious allegations (see Leach v Offcom)
- Is range of reasonable responses sufficient? Elias LJ seems to suggest that it is in Turner
Note: Astrid Sanders - there has been ‘remarkable continuity’ between pre-HRA cases and more recent judicial statements.There is an ongoing reluctance to engage thoroughly with questions of human rights”
Turner v East Midlands
“Thomson has argued that as soon as we place private information in the public domain, we waive our right to privacy.
Turner v East Midlands Trains (UK Case)
Facts;
no direct evidence that she had done this but the allegations were proved on the basis of statistics collected about the rate of non-issued tickets registered by her.
C said affected art 8 bc: seriousness of the allegations and the potential impact on the claimant’s future,and insufficient to satisfy stricter procedural requirements required by Article.
Held: found that Article 8 was not engaged but even if it had been, following (Mummery LJ) X v Y, the application of the traditional band of reasonable responses test was itself compatible.
ECtHR itself has ruled that conduct in public space may be protected by the right to private life.
“Pay v UK
Zone of interaction - conduct in public space may be protected by the right to private life.
BDSM. Right to private life was engaged, even if in public.”
Does location determine privacy expectation? Should it?
“for dismissal protection = reasonable expectaiton of privacy
Right now, yes. Spatial (Turner, Pay)
Should it? Mantouvalou no.
Private/public not determinative. Privacy is contextually dependent. [Schoeman]
private should be defined on the basis of ‘contextual integrity’. [Nissenbaum]”
Should clauses be able to negate privacy? Do they?
“As employees are offered their contract of employment on a take it or leave it basis, and have no bargaining power to negotiate different terms, they may waive all expectations of privacy
if an expectation of privacy is viewed as a descriptive term, it may lead to ‘the possibility of a downward spiral’, and that the state or other powerful actors can create conditions where there is no expectation of privacy
See Barbelescu case”
” Core of privacy rights for employee that cannot be extinguished by employer.
the employee’s ‘reasonable expectation’ of privacy cannot simply be extinguished through employer warnings that communications will be monitored.
“
“Barbulescu v Romania
the employee’s ‘reasonable expectation’ of privacy cannot simply be extinguished through employer warnings that communications will be monitored.
an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary’.
- Not justified, but has legitimate aim. Why not justified? Didn’t give extent of monitoring. Employees had expectation of prior notice of duration and extent of monitoring. (art 8)
- Dismissal is most serious sanction, should be applied has last resort.- Thus: insofar as the employer’s interference is limited in scope, proportionate and serves a legitimate objective (Eg: proving a disciplinary breach), a sufficient balance is ensured between the employer’s interests and employee’s rights under Article 8 of the ECHR.
My Lawyer told me to do shady shit, can this confidentiality be broken in court?
“X v Y (2018)
the EAT found that an email sent by a solicitor to an employer, which advised it on how to go about ‘cloaking’ a dismissal on grounds of disability as a redundancy, was admissible as evidence in court. Because its purpose was to ‘effect inequity’, legal advice privilege (which would otherwise prevent its disclosure in court) would not apply. “
If I recieve a tip off from the police saying my employee is shady, can it be valid for me to go through their emails?
“Garamukanwa v Solent NHS Trust [2016] - Trust dismissed Mr G for gross misconduct and relied on evidence found by the police on Mr G’s private phone
evidence relied upon by the Trust was unearthed following the criminal investigation conducted by the police. This was not a case where the Trust went “fishing” for the proof itself, but clearly once it had obtained the evidence, it couldn’t ignore it. The EAT confirmed that it was acceptable to do so.
1) The emails were sent to the work addresses of the recipients and dealt, at least in part, with work related matters.
2) The emails had an adverse impact on Ms M’s emotional stability and the corresponding performance of her work.
3) The senior positon held by Mr G was also considered relevant as was the fact that he was subject to professional standards.”
If I recieve a tip off from the police saying my employee is shady, can it be valid for me to dismiss them?
“Michael Leach v Offcom
- CoA: Even if suspicion, if tipped off by police & Not a knee jerk reaction = conducted reasonable investigaiton.
- then dismissed for breakdown of trust and confidence. Reputation damage possiblity enough. Employee not open & frank
- can be RORR.”
Social media overview + Art 10
“[Mantouvalou] Two factors make dismissals for social media activity particularly challenging for courts:
1) the fact that social media are online platforms that everyone can potentially access, and hence public rather than private space;
2) that expression on social media, often spontaneous and thoughtless, is not viewed as a particularly valuable form of speech
Privacy needs to be interpreted in this particular context not as covering activities in private space but as covering life away from work.
Free speech should cover spontaneous or unpleasant speech, but also possibly speech that offends, because of the value of freedom of expression for individual autonomy
It is generally accepted that different types of speech justify different degrees of protection. importance of social media for freedom of expression in a case involving political speech. [Cengiz and Others v Turkey -> youtube was unique & no alternative]
Atkinson v Community Gateway [2015] ICR 1 – explicit e-mails not private
Game Retail v Laws, EAT0188/14 – offensive comments on Twitter
Crisp v Apple Retail, ET – rude about Apple on Facebook
Smith v Trafford Housing [2013] IRLR 86”
Policy said could use e-m for private use; but said could be monitored and should not be used to transmit material which was obscene or in bad taste; said should mark “personal/private”.
Atkinson v Community Gateway
EAT qn: Twitter account had acquired a sufficiently work-related context, and whether the settings were public or private. “
Game Retail v Laws,
“Ms Gibbins had the highest Facebook privacy settings, but her employer could be identified.
Gibbins shows that a user of social media can be attacked for statements that the user has not made. Although the allegations were false, the embarrassment of the employer was enough reason to dismiss her.
- Why? The role of human rights law is exactly to protect individuals and minorities from the imposition of majoritarian views and preferences
- if it is accepted that the British Council has a particular ideology, it is important to recall that her job was not public-facing, so it is difficult to see why she should accept limitations on her freedom of political expression.. “
Gibbins v Daily Mail
