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Unfair Dismissal and Human Rights

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

In an important test case, the Court of Appeal has been asked to decide whether the test of ‘proportionality’ laid down by the European Convention on Human Rights (ECHR) should be applied to unfair dismissal cases (Turner v East Midlands Trains Limited).

A senior train conductor who was dismissed after being accused of fraud is arguing that the Employment Tribunal (ET) that rejected her case should have considered the personal consequences of her losing her job and found that the circumstances amounted to a violation of Article Eight of the ECHR, which enshrines the right to respect for private and family life.

After 12 unblemished years working for East Midlands Trains Limited, the woman – who has always vehemently denied any wrong-doing – was accused of deliberately manipulating a hand-held machine to print out ‘non-issued’ tickets, which closely resemble genuine tickets, and selling them to members of the public for cash.

She was dismissed in March 2010 and has since had her unfair dismissal claims rejected by an ET and the Employment Appeal Tribunal. However, she is now asking the Court of Appeal to overturn those decisions and order a re-hearing of her case by a fresh ET.

Her lawyers argue that her dismissal, at the age of 51, had irreparably stigmatised her previously spotless reputation, ruined her prospects of getting another job and destroyed her relationship with long-standing colleagues, some of whom had ‘ostracised’ her.

It was submitted that the consequences of dismissal were so serious that Article Eight was ‘engaged’ in the case and that the ET should have considered whether the woman’s dismissal amounted to a disproportionate interference with her human rights.

However, lawyers representing East Midlands Trains insist that the company carried out a ‘thorough and fair investigation’ before dismissing the woman. ‘It would be an extraordinary state of affairs if dismissal in such circumstances by a private sector employer was, or was capable of being, unfair simply because the appellant’s reputation or ability to interact with her former workmates had thereby been affected,’ it was submitted.

Recognising the importance of the case, Lord Justice Maurice Kay, Lord Justice Elias and Sir Stephen Sedley reserved their judgment on the woman’s appeal until a later date.

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