The claimant had been dismissed after it was discovered he had been cautioned for a public homosexual act. He appealed dismissal of his claim saying that the standard of fairness applied was inappropriate with regard to the Human Rights Act, and that the state had a duty to protect him from private acts which breached his human rights. The tribunal had applied Foley.
Held: The question was as to the so called horizontal effect of the Convention. Article 8.1 was not engaged, as the facts found by the employment tribunal do not fall within its ambit. The question of applicability should be answered first and only then should the court ask whether there had been a possible Convention breach. The court gave guidance to Employment Tribunals as to how to adopt a structured approach to arguments on the 1998 Act in private cases of unfair dismissal.
Lord Justice Brooke (Vice President Of The Court Of Appeal (Civil Division)) Lord Justice Mummery And Lord Justice Dyson
 EWCA Civ 662, Times 16-Jun-2004,  IRLR 625,  UKHRR 1172,  ICR 1634
Employment Rights Act 1996, European Convention on Human Rights 8
England and Wales
Cited – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Appeal from – X v Y EAT 11-Jun-2003
EAT Unfair Dismissal – Reason for dismissal . .
Cited – Nottinghamshire County Council v Bowly 1978
Cited – Wiseman v Salford City Council 1981
A public employee’s dismissal after a finding of gross indecency was found to have been fair. The applicant had been employed on a job which brought him into contact with young children. . .
Cited – P v Nottinghamshire County Council 1992
Cited – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
Cited – Zehnalova and Zehnal v Czech Republic ECHR 14-May-2002
The applicants were husband and wife and the wife was physically handicapped. They complained that their Article 8 rights were infringed because, in breach of Czech law, the authorities had failed to install facilities that would enable her to gain . .
Cited – PG and JH v The United Kingdom ECHR 25-Sep-2001
The use of covert listening devices within a police station was an infringement of the right to privacy, since there was no system of law regulating such practices. That need not affect the right to a fair trial. The prosecution had a duty to . .
Cited – Ghaidan v Godin-Mendoza CA 5-Nov-2002
The applicant sought to succeed to the tenancy of his deceased homosexual partner as his partner rather than as a member of his family.
Held: A court is bound by any decision within the normal hierachy of domestic authority as to the meaning . .
Cited – Wilson v First County Trust (2) CA 2-May-2001
Rules under the Act which precluded a party from any recovery for non-compliance with its provisions were disproportionate, and a denial of the human right of the lender to a fair trial, and a declaration of incompatibility was made. A pawnbroker’s . .
Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB Admn 17-Oct-1996
Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been . .
Cited – Copsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
Cited – Fosh v Cardiff University EAT 23-Jan-2008
The professor had sought time off to represent another lecturer claiming race discrimination against the University. The University said that her behaviour created a conflict of interest with the University. She continued and herself claimed . .
Lists of cited by and citing cases may be incomplete.
Employment, Human Rights
Updated: 02 November 2021; Ref: scu.197818