Court of Appeal uphold sacking of train conductor
A train conductor sacked for selling fake tickets to passengers for personal profit could not rely on human rights law to support her unfair dismissal claim.
Ruling in Turner v East Midlands Trains [2012] EWCA Civ 1470, the Court of Appeal held that East Midlands Trains employee Heather Turner could not rely on Art 8 (respect for private life) where the damage to reputation was the foreseeable consequence of her own actions.
It held that the “band of reasonable responses” test for determining fairness was consistent with the proportionality test contained in Art 8(2) of the European Convention on Human Rights.
Turner was dismissed when her employer discovered she was selling tickets from a portable machine which classed them as “non-issues”, and keeping the proceeds. She brought a claim of unfair dismissal, arguing that Art 8 applied because her dismissal interfered with her relationships with colleagues and damaged her reputation and future job prospects. She argued the employment tribunal must apply a proportionality test rather than the “band of reasonable responses” test.
Dismissing the appeal, Lord Justice Elias said: “I am satisfied that, so far as procedures are concerned, the domestic test of fairness does not fall short of the procedural safeguards required by Art 8.
“In that context, I reject the appellant’s submission that the concept of proportionality is either a helpful or relevant one when considering the fairness of the procedures.”
Allan Finlay, partner at Kennedys, which represented East Midlands Trains, says: “This judgment is a welcome affirmation of the band of reasonable responses test for employers...Had the appeal been successful, defending unfair dismissal claims would have become much more of a lottery.”
