Train conductor sacked for selling fake tickets cannot rely on human rights

A senior train conductor sacked for fraudulently selling fake tickets to travellers and keeping the money cannot use human rights arguments to subvert the traditional ‘reasonable employer’ test, appeal judges have ruled.

The Court of Appeal heard that Heather Turner “deliberately manipulated” her ticket machine to produce “non-issued” tickets of “sufficiently merchantable quality to give the appearance of being genuine tickets”, which she sold to members of the public.

Counsel for Turner argued that there was no direct evidence that she had done this and the case for the employer was based on statistics, which a proper investigation could have shown were unreliable.

Lord Justice Elias said it was a “firmly established principle” of unfair dismissal law that whether an employer had acted fairly within the meaning of section 98 of the Employment Rights Act 1996 depended on the ‘band of reasonable responses’ test.

Delivering the leading judgment in Turner v East Midlands Trains [2012] EWCA Civ 1470, Elias LJ said that, under the traditional test, “it was not for the tribunal to substitute its own view for that of the reasonable employer”.

Elias LJ said the employment tribunal ruled in this case that article 8 of the ECHR was not engaged and even if it was, the ‘band of reasonable responses’ test was compatible with the Convention.

Counsel for Turner argued that three consequences of dismissal engaged article 8 – the damage to her reputation caused by the finding of dishonesty, the potential restriction on her ability to find other work and the damage to her social relationships with colleagues.

Elias LJ said that he was satisfied that “so far as procedures are concerned, the domestic test of fairness does not fall short of the procedural safeguards required by article 8.”

He went on: “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.

“The Strasbourg court does not use that language when referring to article 8 procedural safeguards; it uses the language of fairness, a concept universally adopted when speaking of procedures.

“Recourse to a concept of proportionality – a word not found in article 8(2) itself – in my judgment simply obfuscates and potentially complicates the essentially simple concept of a fair procedure.

“Since in this case the employee has conceded that the procedures satisfied domestic standards, and given my conclusion that these reflect article 8 requirements, it follows that the appeal must fail.”

Elias LJ dismissed the appeal. Lord Justice Sedley agreed, for his own reasons, as did Lord Justice Maurice Kay.

Allan Finlay, partner at Kennedys, acted for East Midland Trains.

“This judgment is a welcome affirmation of the ‘band of reasonable responses’ test for employers test and means that employment tribunals cannot be asked to substitute their own view of whether a dismissal is fair or unfair for that of the employer.

“Had the appeal been successful, defending unfair dismissal claims would have become much more of a lottery.”