X v Y [2003] IRLR 561

Frankly, the impact of the Human Rights Act in employment law has been limited. In this case, the European Convention on Human Rights was relied on to influence the band of reasonable responses test in determining whether a dismissal is fair. Although X lost his case, the Employ-ment Appeal Tribunal's decision indicates that there will be cases where a Tri-bunal may have to consider how to interpret section 98(4) of the Employment Rights Act 1996 in the light of Convention rights. So, a glimmer of hope at least.

X was employed as a development officer for a charity and worked promoting personal development among young people and working with young offenders.

When off duty, X had sex with another man in a public lavatory and was later cautioned for gross indecency. He did not tell his employers, but when they found out, and after following their disciplinary and appeal procedure, he was dismissed.

At an Employment Tribunal, X argued that the test of reasonableness had to be interpreted consistently with his rights to respect for private and family life and not to be discriminated against on grounds of sexual orientation under Articles 8 and 14 of the European Convention. The Tribunal however refused to engage with the Convention arguments, saying that the fact that X had not told his employer about the caution and, as he acknowledged that he ought to have done so, the dismissal was necessarly fair. It also made a finding of fact that X's dismissal was not "motivated" by homophobia.

The EAT started off by saying that not all sexual activity is to be regarded as "private" for the purpose of Article 8. There is some support for that proposition from Jamie Theakston's case against the Daily Mirror, but our view is that sexual behaviour is necessarily an aspect of private life.

The EAT then decided that what it described as a "transitory sexual encounter" in a public lavatory did not fall within the right to respect for private and family life. Article 8 was not therefore engaged and Article 14, the so-called "parasitic" right, could not therefore be engaged either. X could not therefore use the Convention to re-interpret section 98(4) of the Employment Rights Act 1996.

However the EAT did say that there may be cases in future where section 98(4) does have to be re-interpreted in the post-human rights age. It referred specifically to an outrageous case of Saunders v Scottish National Camps [1980] IRLR 174. Mr Saunders was dismissed from his job at a children's camp after he was found to have participated in homosexual activity, on grounds he was unsuitable to work in a children's camp. The EAT upheld his dismissal. In X v Y, the EAT said that, in the absence of a suggestion of a real risk to children or a criminal offence which is relevant to the job, the fairness of dismissals such as Mr Saunders' may have to be considered differently under the Human Rights Act.

The EAT has not said that the "reasonableness" test is either left intact or changed irreversibly by the Human Rights Act. But it has said that there may be cases where the test has to be read through human rights-tinted glasses.