7 November 2014

By Michael Ford QC, Old Square Chambers

Article 8 of the Convention protects the right to private life. Conservative conceptions of this right see it as restricted to matters such as freedom of thought, the protection of property (especially the home) against state intrusion and, above all, the right to engage in market transactions. The Court of Human Rights (“ECtHR”), however, has resisted such a narrow conception. Starting with its ruling in Niemitz, it has consistently held that the right is not restricted to an “inner circle” but also extends to encompass the right to form and develop relationships with other human beings, including with colleagues at work.

Articulated in this way, the right in Article 8 has the potential to protect against practices which interfere with working life in the broad sense. It may apply where an employer engages in secret monitoring of a worker’s telephone calls or e-mails in the workplace (Halford v UK). Combined with Article 10 on freedom of expression, it may prevent refusals to recruit owing to political views or activities (see e.g. Sidabras v Lithuania). It protects against decisions to dismiss on the ground of a person’s sexuality, exemplified by the ruling that the UK’s ban on gay people serving in the military infringed Article 8 (Smith v UK). Where a choir master was dismissed by a Catholic church for having an extra-marital affair and would find it especially difficult to find a job outside that church, for example, Article 8 required that the German domestic courts balanced the choir master’s family life with his unmarried partner against the interests of the church, without according overriding weight to the interests of the church (Schuth v Germany).

The recent decisions in Volkov v Ukraine and Affaire IB v Grèce equally demonstrate the potentially significant effect of Article 8 on UK unfair dismissal law. In Volkov the ECtHR wasted little time in deciding that the dismissal of a judge from office engaged Article 8: dismissal from office affected a wide range of his relationships with other persons, including professional relationships, as well as affecting his “inner circle” because of its consequences for his material well-being and his family; it also affected his professional reputation. Because his dismissal was not in accordance with domestic law, it was unlawful under Article 8.

In IB v Grèce, unfortunately only available in French at present, IB was employed in a jewellery factory. After he told three colleagues that he thought he was HIV positive, the employer received a letter from 33 employees asking that it dismiss IB to protect their health. In fact there was no health risk to other employees from working with IB, but the employer still dismissed him. His legal action against his employer failed before the Greek courts and so he applied to the ECtHR.

The Greek government argued that Article 8 was not engaged because IB was not prevented from working but only dismissed from a particular job. It relied, too, on the complaints of IB’s colleagues to justify his dismissal. Rejecting these arguments, the ECtHR held that the dismissal had serious effects on IB’s private life, stigmatising a person with no symptoms. Although he had managed to find another job this did not, the ECtHR said, erase the damaging effects of his dismissal. Nor could the decision to dismiss him be justified by the employer’s interest in calming the problems in the workplace. In particular, it was unclear what would have happened if the appeal courts in Greece had made clear that it was not permissible to dismiss HIV positive employees based on false beliefs. The ECtHR awarded IB his lost wages since dismissal and compensation for injury to feelings.

These decisions show, then, that Article 8 will normally apply to the decision to dismiss someone from a single post (and not only to complete bans on working). As shown most clearly shown by Volkov, a “normal” dismissal often has serious consequences for an individual’s relationships at work, material welfare and reputation. If so, it must meet the relatively strict test of justification in Article 8(2).

To date the domestic tribunal courts have not been very good at translating Article 8 into UK law: Volkov v Ukraine and IB v Grèce shows they may have to change their attitude.

Though these are uncharted waters, the cases point to the following challenges to domestic law and practice. First, what if a dismissal protection affects someone’s private life, well-being and reputation (as in Volkov) but the employee has no right even to claim unfair dismissal (e.g. because he or she has insufficient service)? How could it then be said that a dismissal was justified when it relies on simply giving notice of dismissal or payment of damages in lieu of notice – non-existent or irrelevant remedies? Second, the decisions may prevent employers simply relying on prejudice, “common sense” (for which read what the employer thinks) or wrong views to justify the fairness of a dismissals. More radically still, third, they point to a greater degree of scrutiny of employers decisions, based on the European tests of necessity and proportionity, rather than what is traditionally required by the very weak “range of reasonable responses” test in unfair dismissal. Fourth, they may be used to challenge the low levels of compensation, now capped at one year’s salary, and the irrelevance in practice of the remedies of reinstatement and re-engagement: how can such weak remedies provide an effective remedy for an infringement of Article 8?