X v Y, CA, 28 May 2004, EWCA Civ 662

Criminal activity ‘not private’: The employee worked for a charity involved in the personal development of young offenders and those at risk of offending.

In 2001, the charity discovered that six months earlier, he’d been arrested and cautioned for a sexual offence with another man in the toilets of a motorway service station, and his name had then been placed on the Sex Offenders Register.

He was dismissed for gross misconduct for concealing it from his employer. He brought a claim for unfair dismissal, citing Article 8 of the European Convention on Human Rights (right to respect for private life) and Article 14 (prohibition of discrimination).

His claim was dismissed by the tribunal, the EAT and the Court of Appeal. The Court held that Article 8 did not apply as the offence had not taken place in private, but in a transport café, and it should have been disclosed to his employer.

Without Article 8, Article 14 became irrelevant. Lord Justice Mummery said that it would be advisable for employment tribunals to deal with points raised under the HRA in a more structured way than had been adopted in this case, and he suggested a framework for tribunals to adopt.

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