Thu, 27 Dec 2012
By Richard Adkinson
Richard Adkinson considers the issue of dismissals and Article 6 which has recently been considered in the case of Ministry of Justice v Parry UKEAT/0068/12/ZT by Langstaff J.
The case of Parry (“P”) is rather unusual on the facts. P was employed originally in the Probate Registry. She was later promoted (if that is the correct word) to become a District Probate Registrar. The appointment as a Registrar is an office. Appointment to the office is by the Queen on the Lord Chancellor’s recommendation. Her removal from that office can only be effected by the Queen on the Lord Chancellor’s further recommendation.
This distinction between her office as Registrar and her employment as Registrar became important. Her claim was that she had been dismissed from employment but not the office, though she contended that the effect of the dismissal would be her inevitable removal from office.
In November 2009 she was given a final warning on the grounds of gross misconduct for bullying and harassment. In July 2010 further allegations of the same nature arose. After an investigation and disciplinary hearing she was summarily dismissed for gross misconduct. At an appeal she asked to be represented by a solicitor. This was refused, though the solicitor sent, and MOJ considered, detailed and lengthy written submissions. The appeal was dismissed.
The EAT considered the point about legal representation. Article 6 provides “1. In the determination of his rights and obligations… everyone is entitled to a fair and public hearing within a reasonable time, by an independent and impartial Tribunal established by law…”
The EAT referred to R (G) v Governors of X School [2011] UKSC 30. In that case the Supreme Court held that in deciding whether Article 6 applied the Court had to take into account a number of factors, including (at [68]) “(i) whether the decision in proceedings A is capable of being dispositive of the determination of civil rights in proceedings B or at least causing irreversible prejudice, in effect, by partially determining the outcome of proceedings B; (ii) how close the link is between the two sets of proceedings; (iii) whether the object of the two proceedings is the same; and (iv) whether there are any policy reasons for holding that Article 6 (1) should not apply in proceedings A.”
It also referred to Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 in which the Court of Appeal concluded the trust’s decision to dismiss M did not determine his right to seek work as a doctor, and that the application of Article 6 does not vary depending on the facts of the case. The Court of Appeal drew the distinction between the legal and practical effect of a dismissal.
Noting the practical nature of the question and its sensitivity to the context of the case, the EAT remitted the matter to the ET to consider afresh. It rejected the MOJ’s suggestion that the case law shows the need for 2 sets of proceedings: internal and those of a professional body. It noted that Article 6 arises where the civil right is adjudicated on in a manner which is dispositive of the right to practise in the chosen profession. The tribunal had not had the opportunity to consider what effect there would be on P from her consequent removal from the list of probate registrars. Did it merely mean she was not part of the current staff or did it mean she could work nowhere else in the country?
The tribunal noted, obiter, there was force to the MOJ’s argument that even if Article 6 applied and there had been a consequent breach of Article 6, it did not follow that the dismissal must be unfair (though obviously such circumstances would be rare).
The EAT also considered Polkey and emphasised that, since the repeal of s.98A ERA 1996, the reduction to reflect chance of dismissal runs across the whole spectrum from zero to 100%. Finally the EAT commented on contractual considerations and reminded everyone that the law of contract applies to both employers and employees equally. In the same way that an employee can rely on the last straw doctrine to prove a repudiatory breach (Lewis v Motorworld Garages Ltd [1986] ICR 157), so can the employer.
