By Heather Williams QC

The Court of Appeal recently decided in Turner v East Midlands Trains Ltd [2012] EWCA Civ 1470 that the band of reasonable responses test (“BORR”), applied by Employment Tribunals to determine whether a dismissal is fair or unfair for the purposes of section 98(4) Employment Rights Act 1996, meets the standards of justification required by Article 8(2) of the European Convention on Human Rights when engaged by the consequences of a dismissal. 

In support of this conclusion, both Elias LJ and Sir Stephen Sedley stressed that the BORR entailed a higher standard of review than a public law Wednesbury type test, as it involved an objective assessment of the decision to dismiss by the Tribunal, who should expect a more rigorous investigation from an employer where the consequences were particularly serious in terms of reputational damage and/or future employment prospects.

However, it seems doubtful that the BORR in fact operates very differently to a Wednesbury test in practice.  Countless Court of Appeal authorities have stressed that the Tribunal cannot substitute its own judgment for that of the dismissing employer and that provided a reasonable employer could have dismissed, the decision to do so is lawful.  It is hard to envisage many circumstances in which a dismissal would be sufficiently unreasonable to fall outside the BORR available to the employer, but not extreme enough to be characterised as perverse.

Furthermore, where Article 8 is engaged, Article 8(2) requires the Court / Tribunal to makes its own assessment of the proportionality of the measure, including, where there is a relevant dispute, by conducting its own assessment of the facts and its own evaluation of the competing interests involved; see for example, the Supreme Court’s decision in the housing context in Manchester City Council v Pinnock [2010] 3 WLR 1441.  By contrast a BORR test presupposes just that; a range of permissible responses, so that a dismissal may be lawful even though some reasonable employers would not have decided to dismiss.  It is hard to see how this equates with a proportionality test under which the Tribunal makes its own assessment of the proportionality of the dismissal and may conclude that dismissal in the particular circumstances was disproportionate.  Indeed, those repeated injunctions against Tribunals forming their own views of the facts and / or substituting their own view as to whether the employee should have been dismissed, seem to directly conflict with the conventional Strasbourg approach to proportionality under Article 8(2) in the employment context, see for example Kyriakides v Cyprus (2009) App. No. 39058/05 and Schuth v Germany (2011) 52 EHRR 32.   Further, both the European Court of Human Rights and the House of Lords has rejected the proposition that a “Super Wednesbury” test entailing heightened scrutiny is analogous to a Convention compliant proportionality assessment, for example see Smith & Grady v United Kingdom (1999) 29 EHRR 493 and R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532.

Despite having considered employment discrimination cases on countless occasions, neither the House of Lords or the Supreme Court has ever examined the legitimacy or application of the BORR, even though it entails a restrictive test that is nowhere to be found in the apparently wide words of section 98 of the Employment Rights Act (which, in turn, makes it rather ironic that Elias LJ noted in his judgment that proportionality was not a word that was to be found in Article 8 itself).  Perhaps the Supreme Court could now be persuaded to do so, tempted by the particular challenge of exploring the interface between domestic unfair dismissal law and Convention rights.

More encouragingly from a claimants’ perspective, Elias LJ’s judgment contains a detailed analysis of recent European Court of Human Rights authorities indicating when Article 8 will be engaged by the consequences of a dismissal, including by virtue of the damage to reputation involved or, less commonly, by the adverse effect upon future employment opportunities and / or the disruption to relationships with, for example, work colleagues.  Domestic law has previously contained little guidance on this issue.  If, as seems likely from this assessment, Article 8 is potentially engaged when, for example, dismissal occasions serious reputational damage, this may in turn call into question whether current unfair dismissal law provides what Strasbourg would regard as an “effective remedy” given that heads of compensation are restricted by statute and for example, no award may be made for injury to feelings.

Heather Williams QC is a senior barrister at Doughty Street Chambers in London.