One of the themes of my book Struck Out, is the modesty of the impact made on UK employment law by the European Covention on Human Rights, and I draw a contrast with a number of other, comparable, areas of UK law (not least the law relating to landlords and tenants) where the Convention, purposivley applied by the European Court of Human Rights, has made deeper inroads into the UK’s common law traditions.
Part of the reason why human rights have never really “flown” at the EAT has been that claimants have attempted to use the rights set out in the European Convention as a shield, to protect cases which were weak on their facts. The two most important cases have been X v Y (a development officer for a charity working with young offenders who had been prosecuted for cottaging, and was dismissed) and Pay v UK (a probation officer involved in the treatment of sex offenders was dismissed as a result of his connection with an organisation involved in S&M events). Both were dismissals, and in both cases, the Convention was invoked to bolster claims which were unlikely to have the starting sympathy of the judiciary.
(Of course, that raises a delicate question for lawyers about which cases you want to go up to appeal – it’s a bold lawyer who tells their client unequivocally, “you musn’t appeal as you will muck up the law for thousands of other people”, but it’s one of our jobs, and any political lawyer will know the speech by heart).
The trend towards weak cases going “higher” in the system than does anyone else any good has unfortunately continued, as can be seen at work in the recent Court of Appeal decision of Leach v Ofcom, in which an employer was made aware of very serious allegations of child sex abuse against a worker, who was said to have abused minors in Cambodia.
The employer investigated the allegations and dismissed the worker, who was latterly sentenced to 12 years imprisonment in Cambodia. Their claim for unfair dismissal failed at the ET and they fared no better on appeal to the EAT. The Court of Appeal eventually granted permission for their appeal which took place in their absence (the worker still being in prison).
In his decision Mummery LJ doubted that the protection of article 8, “which is not some kind of universal haven for the protection of the whole of human life” was not engaged, or if it was engaged, the employer’s interference with the worker’s art 8 rights was lawful.
You can understand why the (unrepresented) appellant took it this fair, but all they have done in reality is gift the employers in general yet another case to say that article 8′s applicability to the sphere of employment is limited.
“The” strong article 8 case is out there – if only lawyers can find it, and shepherd it to the right conclusion. My own view is that it the Convention will be most use in a case where the employer is clearly cuplable (even if the behaviour is not obviously actionable), i.e. the Convention is made into a “sword”.