Can M&S whistleblower’s use of Human Rights Act succeed?

A case recently heard before the London Central employment tribunal highlights a novel use of the Human Rights Act in an unfair dismissal claim. Tony Goode was dismissed by Marks & Spencer in 2008 after he leaked internal company documents about plans to cut staff redundancy payments to the Times newspaper. His unfair dismissal claim is supported by the GMB Union. Goode is arguing that his dismissal was in breach of his rights under the Human Rights Act 1998.

The Act came into force in 2000 and incorporates the European Convention on Human Rights into UK law. It does not offer individuals a freestanding claim, but UK courts are required, as far as possible, to interpret all legislation in a way that is compatible with the convention.

The main convention rights which are relevant to employment are the rights to a fair trial, respect for private and family life, freedom of thought, conscience and religion, freedom of assembly and association, and prohibition of discrimination.

The impact of the Human Rights Act on the law of unfair dismissal has been considered in a number of cases. In X v Y, Lord Justice Mummery said that whenever points arose under the Human Rights Act an employment tribunal should consider:

  • Whether the circumstances of the dismissal fall within the ambit of one of the articles of the convention? If not, the convention right is not engaged and need not be considered.
  • If they do, does the state have a positive obligation to secure enjoyment of the relevant convention right between private persons? If it does not, the convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer. If it does, is the interference with the employee’s convention right by dismissal justified?
  • If it is not, was there a permissible reason for the dismissal under the Employment Rights Act 1996, which does not involve unjustified interference with a convention right? If there was not, the dismissal will be unfair.
  • If there was, is the dismissal fair, tested by the provisions of s.98 of the Employment Rights Act, reading and giving effect to them under Human Rights Act s.3 so as to be compatible with the convention right?’

It is not clear which convention rights Goode is seeking to rely on. Most likely it is the right to a private life, as the GMB alleges that Marks & Spencer carried out covert surveillance of staff.

The more usual claim brought by an employee in Goode’s circumstances would be that dismissal was automatically unfair because the employee had made a protected disclosure under s.43A of the Employment Rights Act 1996, a whistle-blowing claim. However, whistle-blowers are only protected in limited circumstances. Disclosures will only be protected if they tend to show that:

  • a criminal offence has been or is being committed
  • a person has failed or is failing to comply with a legal obligation
  • a miscarriage of justice has occurred
  • health and safety is endangered
  • the environment has been damaged.

Further, disclosures may only be made to the employer or to another responsible person. A disclosure to the press will only be protected where the employee has already made a disclosure to their employer or he believes that he will be subjected to a detriment if he does so. An employee who goes straight to the press about his employer’s alleged wrongdoing will often not fall within the protection of the whistle-blowing legislation.

Key points:

  • Employees cannot bring freestanding claims under the Human Rights Act
  • Many rights under the Human Rights Act are qualified – employers can interfere with them provided interference promotes a specific legitimate aim, is lawful and is necessary in a democratic society
  • Generally a dismissal which is fair under the Employment Rights Act is unlikely to breach an employee’s human rights

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