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X v Y

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Last updated 20th February, 2020.

The claimant was dismissed after being cautioned for a sex offence with another man, in a cafe lavatory to which the public had access. There was no corresponding offence between a man and a woman. Because of where it took place, it was held not within the scope of Article 8 (private life) of the European Human Rights Convention.

Court of Appeal, 2004. Full judgment: www.bailii.org/ew/cases/EWCA/Civ/2004/662.html

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The claimant worked at a charity promoting personal development of young offenders and those at risk of offending aged 16-25.

The employer discovered he had accepted a caution for committing a sex offence with another man in a transport café lavatory to which the public had access. At the time there was no corresponding offence that could be committed between a man and a woman.

He claimed unfair dismissal, arguing that his dismissal was inconsistent with respect for private life under Article 8 of the European Convention of Human Rights, and in breach of the prohibition of discrimination in Article 14 of the Convention on grounds of sexual orientation.

Held: his claim failed. The offence did not take place in the claimant’s ‘private life’ and so was not covered by Article 8 (or 14).

Court of Appeal judgment

The Court of Appeal held that Article 14 with Article 8 of the European Convention on Human Rights is not confined to public sector employers. If the facts of the case fall within the ambit of Article 8, the state has a positive obligation under Article 14 to secure to private individuals the enjoyment of the right without discrimination, including discrimination on the ground of sexual orientation.

The court said that under s.3 Human Rights Act 1998 unfair dismissal legislation should be read in a way compatible with Articles 14 and 8 so far as possible, for both public and private sector employers.

However in the present case the Convention did not apply because the facts were not within Article 8. The court said

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.

As example of interference in private life within Article 8, the court gave the example of an employee dismissed for eating cake at home or in his lunch break at work (para 59(7)-(10) of judgment).

The court gave guidance summarised at para 64 of the judgment, on how employment tribunals should deal with points raised under the Human Rights Act in unfair dismissal cases between private litigants (including private sector employers).

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