X v Y (11 June 2003) (EAT)

X was employed by a charity organising activities with young offenders, as a development officer. He was cautioned for an offence of gross indecency following an incident with another male in a public toilet, but did not tell his employer. When six months later, the employer learned of the incident, X was dismissed for gross misconduct, following a disciplinary investigation, on the grounds that he had committed a criminal offence which had a direct bearing on his employment and which he had failed to disclose to his employers. The employment tribunal rejected his claim for unfair dismissal, based on the submission that his dismissal involved a breach of his rights under articles 8 and 14 of the European Convention on Human Rights and concluded that the dismissal was fair under section 98(4) of the Employment Rights Act 1996.

X appealed, contending that the EAT had failed to properly consider the interrelationship between UK unfair dismissal law under s98 and the European Convention on Human Rights. He argued that the transitory sexual encounter fro which he received a caution was a private act under art 8 of the Convention and the fact that he had been dismissed because of it breached art 14. The Employment Appeal Tribunal dismissed the appeal:

·         The prohibition on discrimination in art 14 extended to discrimination on the grounds of sexual orientation.

·         However, the offence for which X was cautioned took place in toilets to which the public had access, and was therefore genuinely in public. Just as a transitory engagement with a prostitute in a brothel was far removed from sexual activity in private homes (see Theakston v MGN Ltd), so in the present case the EAT was not persuaded that transitory sexual encounters between consenting male adults in public lavatories fell within the right to respect for private life enshrined in art 8 of the Convention.

·         Accordingly, art 14 was not engaged in the applicant’s case, and there was no potential incompatibility between section 98(4) of the Employment Rights Act 1996 and the applicant’s rights under the Convention requiring a purposive interpretation pursuant to section 3 of the Human Rights Act 1998.

·         In any event, the employment tribunal had expressly found that the employers’ decision to dismiss had not been based on the applicant’s sexuality.
In considering section 98(4) of the Employment Rights Act 1996, the tribunal had correctly applied the standard of the reasonable employer who, disregarding the applicant’s sexuality, was faced with an employee who was working with young offenders and who had committed a criminal offence relevant to his employment which he had not disclosed. Given those circumstances, it could not be said that no reasonable tribunal properly directing itself could have concluded that dismissal fell within the range of responses of a reasonable employer.

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