London Borough of Wandsworth v Vining & Ors (Unfair Dismissal: Exclusions including worker/jurisdiction) [2015] UKEAT 0234_13

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> London Borough of Wandsworth v Vining & Ors (Unfair Dismissal: Exclusions including worker/jurisdiction) [2015] UKEAT 0234_13_1812 (18 December 2015) URL: http://www.bailii.org/uk/cases/UKEAT/2015/0234_13_1812.html Cite as: [2015] UKEAT 0234_13_1812, [2015] UKEAT 234_13_1812

THE HONOURABLE MRS JUSTICE SLADE DBE

1. Wandsworth London Borough Council (“Wandsworth”) appeals from the decision of Employment Judge Zuke sitting alone (“the ET”) of 28 September 2012 with reasons sent to the parties on 23 January 2013 (“the ET Judgment”) on a preliminary issue in claims brought by Mr Vining and Mr Francis (“the Claimants”) for unfair dismissal and by the Claimants’ union, UNISON for protective awards for failure to comply with the requirements of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”) section 188 in respect of redundancies of Parks Police Constables. The ET held that the Claimants were not precluded by section 200 of the Employment Rights Act 1996 (“ERA”) from bringing claims of unfair dismissal. The ET further held that claims by UNISON for a declaration and protective awards were not precluded by section 280(2) of TULR(C)A. As before the ET Mr Capewell appeared for Wandsworth. Ms Criddle appeared for the Claimants and UNISON. She also appeared for UNISON below whilst the Claimants represented themselves below in respect of their unfair dismissal claims.

2. ERA section 200 provides:

“Police officers.

(1)Sections 8 to 10, Part III , sections 43M, 45, 45A, 47, 47C, 50, 57B and 61 to 63, Parts VII and VIII, sections 92 and 93, and Part X (except sections 100, 103A and 134A and the other provisions of that Part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of section 100 or 103A).do not apply to employment under a contract of employment in police service or to persons engaged in such employment.

(2)In subsection (1) “police service” means—

(a)service as a member of a constabulary maintained by virtue of an enactment, or

(b)subject to section 126 of the Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), service in any other capacity by virtue of which a person has the powers or privileges of a constable.”

TULR(C)A section 280 provides:

“Police service.

(1) In this Act “employee” or “worker” does not include a person in police service; and the provisions of sections 137 and 138 (rights in relation to trade union membership: access to employment) do not apply in relation to police service.

(2) “Police service” means service as a member of any constabulary maintained by virtue of an enactment, or in any other capacity by virtue of which a person has the powers or privileges of a constable.”

The Relevant Facts

3. The Claimants were employed as Parks Police Constables by Wandsworth from 1986 until their dismissals by reason of redundancy on 31 March 2012. They received statutory and enhanced contractual redundancy payments. Wandsworth had decided to disband its Parks Police Service in favour of an agreement with the Metropolitan Police Service under which that Service would police Wandsworth’s parks and open spaces.

4. Both Claimants were sworn in as constables under Article 18 of the Ministry of Housing and Local Government Provisional Order confirmation (Greater London Parks and Open Spaces) Act 1967. Article 18 provides:

“A local authority may procure officers appointed by them for securing the observance of the provisions of all enactments relating to open spaces under their control or management and of the bylaws and regulations made thereunder to be sworn in as constables for that purpose that any such officers shall not act as a constable unless in uniform or provided with a warrant.”

5. The ET set out extracts from the training material provided to Parks Constables which referred to the phrase “to be sworn in as constables for that purpose” in Article 18 and said:

“The above wording in Article 18 restricts the powers of a constable to enforcing open space law only… The powers of a constable conferred by Article 18 are for the specific purpose of enforcing only enactments that create specific open spaces offences and this does not include the general law within open spaces.”

At paragraph 10 the ET held:

“Both Claimants were informed during their training that they were not empowered to enforce the general law within the Council’s parks and open spaces.”

The decision of the ET

6. The ET referred at paragraph 11 to a memorandum of understanding of April 2001 between the Metropolitan Police and the Wandsworth Parks Police. The document lists the powers available to the Wandsworth Parks Police. These fall into three categories: (1) Constable Powers which derive from Article 18; (2) “any persons” statutory powers under section 24(4) and (5) Police and Criminal Evidence Act 1984; (3) common law powers. The ET went on to hold that it was clear from the memorandum that the powers of the Parks Police are not identical to the powers available to a Metropolitan Police Officer.

7. The ET held:

“32. Both Section 200 ERA and Section 280 TULRCA have two limbs. The first limb is “service as a member of a constabulary maintained by virtue of an enactment”. The second limb is “service in any other capacity by virtue of which a person has the powers or privileges of a constable.

33 I prefer the submissions of Ms Criddle and Mr Francis. A constabulary is an organised body of constables or police in an area. That is the full extent of its functions. The Council is not a constabulary. It is a local authority, which provides the usual range of services to its residents, including refuse collection and social services. Parks Constables including the Claimants were not serving as members of a constabulary. They were employees of a local authority. I conclude that the first limb of the definition of police service does not apply to them.”

Further, the ET held at paragraph 34 that the Claimants did not fall within the second limb of ERA section 200 or TULR(C)A section 280. EJ Zuke held that the natural reading of the phrase the “powers and privileges of a constable” in the exclusionary second limb only bites on those who have all the powers of a constable. Since Parks Constables did not have all the powers and privileges of a constable the ET held that the Claimants did not fall within the second limb of the exclusionary sections. Accordingly EJ Zuke held that the ET had jurisdiction to consider all the complaints.

Redbridge London Borough Council v Dhinsa and McKinnon

8. After the judgment of the ET in the case under consideration in this appeal, on 26 February 2014 the Court of Appeal gave judgment in Redbridge London Borough Council v Dhinsa and another [2014] ICR 834. That case has been and will be referred to as McKinnon, the second Claimant. The Claimants in McKinnon were employed in Redbridge’s Parks Police Service.

9. Mr McKinnon and Mr Dhinsa brought claims for unfair dismissal. On a pre-hearing, the Employment Judge held that neither Claimant was a “police officer” or a “constable” within the meaning of ERA section 200 so that they were not by virtue of that section precluded from pursuing claims for unfair dismissal. The Employment Appeal Tribunal, Judge Peter Clark, allowed an appeal by the Respondent. The Court of Appeal dismissed Mr McKinnon’s appeal.

10. Jackson LJ set out in full the statutory and common law basis for the powers of the Parks Police Claimants. The terms of service of the Claimants in McKinnon and their attestation and powers were materially indistinguishable from those of the Claimants in this appeal. I gratefully refer the reader to the judgment of Jackson LJ and will not repeat that exegesis here.

11. The Court of Appeal held that ERA section 200(2)(a) applied to the Redbridge Parks Police Constables. All members of the Redbridge Parks Police Service were constables. Therefore the Redbridge Parks Police Service constituted a “constabulary maintained by virtue of an enactment” within that provision [66]. Although it was not necessary to consider ERA section 200(2)(b), Jackson LJ held that members of the Redbridge Parks Police Service are persons who have the powers and privileges of constables. In particular, they have statutory powers of arrest under section 24 of the Police and Criminal Evidence Act 1984. They also have the common law power of arrest in the case of actual or anticipated breach of the peace [67].

12. At one point in the hearing before me, Ms Criddle suggested that as Parks Constables exercised fewer powers than police officers, they did not have all the powers of a constable and so, as a matter of domestic law did not fall within ERA section 200(2)(a) or TULR(C)A section 280. Mr Capewell rightly pointed out that a similar point had been advanced by counsel for the Claimants [52] in McKinnon and had been rejected by the Court of Appeal [54]. Ms Criddle had at the outset of the hearing rightly agreed that the reasoning of the Court of Appeal in McKinnon does apply to the purely domestic law interpretation of ERA section 200(2) and TULR(C)A section 280. That is why an amendment to the Claimants’ Answer in the Employment Appeal Tribunal was made to add an argument that Articles 6, 8, 11 and 14 of the European Convention on Human Rights (“the Convention”) and the Human Rights Act 1998 (“HRA”) require an interpretation of domestic legislation so that the relevant provisions include the words “service as a full member of a constabulary” in ERA section 200(2)(a) and “constable in full” in section 200(2)(b). Further, EU Directive 98/59/EC (“Collective Redundancies Directive”) was relied upon in addition to HRA in the construction of TULR(C)A section 280 to include the words “in full” after “the powers of privileges of a constable.” Ms Criddle reserved for argument in a higher court the contention that contrary to McKinnon, on a purely domestic law construction, ERA section 200(2) and TULR(C)A section 280 apply only to those who have all the powers of a constable.

13. In light of the judgment of the Court of Appeal in McKinnon on the domestic law construction of ERA section 200(2) and by analogy TULR(C)A section 280, the submissions in the appeal before me were focussed on the amended grounds of appeal. By these, the Claimants contended that Articles 8 and 11 taken together with Articles 14 and 6 ECHR require a construction of the domestic legislation which enables them to pursue their claims for unfair dismissal. Further, it was said that the Collective Redundancies Directive requires a similar construction of TULR(C)A section 208 so that UNISON was not prevented from pursuing its claims under section 189.

14. The issue in this appeal therefore is whether the applicable domestic legislation should be construed in a way which safeguards relevant ECHR and EU Directive rights. In determining that issue I will consider whether the claims for unfair dismissal and protective awards engage any of the European instruments relied upon and if so whether, as is contended by Ms Criddle, the domestic legislation can and should be construed so as to safeguard those rights.

The Relevant Provisions of the European Convention on Human Rights

15.

“ARTICLE 6

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

…

ARTICLE 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

…

ARTICLE 11

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

…

ARTICLE 14

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Relevant Provisions of Council Directive 98/59/EC (“the Collective Redundancies Directive”)

16.

“Article 1.2(b)

2. This Directive shall not apply to –

…

(b) workers employed by public administrative bodies or by establishments governed by public law (or, in Member States where this concept is unknown, by equivalent bodies);”

The Issues on Appeal

17. Now that the purely domestic law construction of ERA section 200(2) has been determined (subject to reconsideration by a higher court than the EAT) the appeal by Wandsworth would be bound to succeed unless in accordance with HRA section 2, the ECHR or the Collective Redundancies Directive required a different interpretation favourable to the Claimants and UNISON. Rightly it has not been suggested that the judgment in McKinnon, although on ERA section 200(2), is not also to be applied to TULR(C)A section 280. The issues may be summarised as follows:

(1) Is Article 8 on its own or in conjunction with Article 14 engaged in the circumstances of these cases to enable the Claimants to bring claims of unfair dismissal;

(2) Is Article 11 on its own or in conjunction with Article 14 engaged in the circumstances of these cases to enable UNISON to bring to claims and declaration and for protective awards;

(3) Can the Claimants and / or UNISON rely on the Collective Redundancies Directive to support their claims for protective awards;

(4) If the answer to questions (1) or (2) is yes is it possible for ERA section 200(2) and/or TULR(C)A section 280 to be construed so as to be in conformity with the requirements of the Convention.

(5) If the answer to questions (1) or (2) is yes but to (4) is no, does domestic law provide a means of enforcing those Convention rights which is Article 6 compliant.

(6) If the answer to question (3) is yes can TULR(C)A section 280 be construed so as to give effect to the Collective Redundancies Directive.

Article 8 ECHR

18. The Claimant Park Constables wish to claim that their dismissal for redundancy was unfair. But for the exclusionary provision in ERA section 200(2), as can other employees, they could pursue such a claim. Ms Criddle contended that Article 8 was engaged by the fact of and consequences of the Claimants’ dismissals.

19. Ms Criddle relied upon the third consequence of dismissal, explained by Elias LJ in Turner v East Midlands Trains Ltd [2013] ICR 525 [28] as applicable to bring these claims within the scope of Article 8. Mrs Turner had been dismissed for dishonesty. She had relied upon three consequences of her dismissal which she submitted, whether taken individually or cumulatively engaged Article 8. These were

“… damage to her reputation caused by a finding of dishonesty; the potential restriction on her ability to obtain other employment as a consequence of that finding [of dishonesty] and the stigma flowing from it; and the damage wrought by the dismissal on the social relationships which she had developed with her work colleagues.”

Elias LJ held [29]:

“There is no doubt that in an appropriate case each of these interests is in principle capable of engaging Article 8.

…

[31] It is also established that the maintenance of relationships with others may be an aspect of Article 8 private rights: see for example Connors v United Kingdom [2004] 40 EHCR 189, para 82.”

20. Ms Criddle contended that the cases of the Claimants fall within Article 8 because the Court of Appeal in Turner and the ECHR in Volkov v Ukraine [2013] IRLR 480 and IB v Greece (Application no. 552/10) had so held not only where the courts were concerned with dismissals not engaging reputation but also in other cases. Ms Criddle relied upon paragraph 165 of Volkov in which the ECHR held:

“It notes that private life “encompasses the right for an individual to form and develop relationships with other human beings, including relationships of a professional or business nature” (see C. v. Belgium, (1996) EHRR 19). Article 8 of the Convention “protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world” (see Pretty v. the United Kingdom, (2002) 35 EHRR 1, paragraph 61. The notion of “private life” does not exclude in principle activities of a professional or business nature. It is, after all, in the course of their working lives that the majority of people have a significant opportunity to develop relationships with the outside world (see Niemietz v. Germany, [1992] 16 EHRR 9). Therefore, restrictions imposed on access to a profession have been found to affect “private life” (see Sidabras and Džiautas v. Lithuania, [2006] 42 EHRR 6, and Bigaeva v. Greece, no. 26713/05, 22-25, 28 May 2009). Likewise, dismissal from office has been found to interfere with the right to respect for private life (see Özpınar v. Turkey, no. 20999/04, 43-48, 19 October 2010). Finally, Article 8 deals with the issues of protection of honour and reputation as part of the right to respect for private life (see Pfeifer v. Austria, no. 12556/03 (2007) 24 BHRC 167 paragraph 35, 15th November 2007 and A. v. Norway, no. 28070/06, 63-64, 9 April 2009).”

21. Ms Criddle also placed reliance on IB v Greece in which the ECHR held of the dismissal of an HIV positive employee:

“67. Regarding whether the facts of the case fall within the scope of Article 8, the Court reiterates that the notion of “private life” is a broad concept, not susceptible to exhaustive definition. It covers the physical and moral integrity of the person and sometimes encompasses aspects of an individual’s physical and social identity, including the right to establish and develop relationships with other human beings, the right to “personal development” or the right to self-determination as such (see Schüth, cited above, 53).”

22. The court in IB v Greece went on to consider whether there was compliance with Article 14 taken in conjunction with Article 8. The court stated that health status, such as HIV infection, fell within “other status” in Article 14. The Claimant was dismissed because of pressure from other employees regarding his health status. He was treated differently from comparators. The ECHR held that the domestic court did not adequately explain how the employer’s interests prevailed over those of the applicant in deciding whether the difference of treatment in question was objectively and reasonably justified. Relying also on Sidabras v Lituania [2006] 42 EHRR 6 and Volkov in which the treatment complained of was because of the applicant’s previous engagement by the KGB, Ms Criddle contended that “other status” in Article 14 included profession or category of employment. Accordingly, treating the Claimants differently because they were Parks Constables infringed Article 8 taken together with Article 14. Further, she pointed out that the Respondent in the cases under consideration did not advance an argument seeking to justify the difference in treatment between the Claimants as Parks Officers’ exclusion from the right to claim unfair dismissal, and other employees who had that right.

23. Lord Neuberger in R(RJM) v Work and Pensions Secretary [2009] IAC 311 observed of Article 14:

“… it seems clear that a generous meaning should be given to the words “or other status” ” [42]

Ms Criddle relied upon Lord Neuberger’s observation in paragraph 46 that Lord Bingham had said in R(Clift) [2007] 1 AC 484 paragraph 28 that in the absence of decisions as Gerger (unreported), 8 July 1999, he would have been “inclined to regard” a life sentence as an acquired personal characteristic and a lifer as having “other status” to support her contention that being of a particular occupation, in this case that of Parks Constable fell within “other status” for the purposes of Article 14.

24. In response to a contention that domestic provisions in compliance with Article 6 provided an effective remedy for any breach of Article 8, Ms Criddle contended that, contrary to the submission of Mr Capewell, judicial review or damages under the HRA were not adequate. Ms Criddle drew attention to the judgment of the ECHR in Turek v Slovakia [2007] 44 EHRR 43 p 861 in which the court observed:

“… the court must ascertain whether, taken as a whole, the proceedings, including the way in which the evidence was dealt with, were fair for the purposes of Article 8 of the Convention.” [114]

25. Ms Criddle pointed out that the level of scrutiny and remedies available in judicial review proceedings are different from those in cases of unfair dismissal. It was submitted that the availability of judicial review did not provide a right to a fair hearing in compliance with Article 6.(1) as the court in judicial review proceedings cannot substitute its own findings of fact and draw its own inferences from those facts. (Bryan v UK [1995] 21 EHRR cited in R(Alconbury Ltd.) v Environment Secretary [2004] 2AC 295 [152].) Unlike the decision in Alconbury what is at issue in the current appeals is not government policy for which judicial review was Article 6 compliant but a decision to dismiss for which it was not. Further, it was said that in any event these Claimants would have no right to claim judicial review. They had no public law right not to be dismissed unfairly. In any event the remedies available in a claim for unfair dismissal were not available in judicial review. As Maurice Kay LJ observed in R(Shoesmith) v OFSTED [2011] ICR 1195 regarding a challenge to a dismissal;

“It is now obvious that in the great majority of cases proceedings in the employment tribunal will be the better, if not the only remedy.” [87]

26. Accordingly, Ms Criddle contended that the Claimants’ Article 8 rights taken alone or in conjunction with Article 14 were infringed by the bar placed by ERA section 200(2) on their ability to claim unfair dismissal and that judicial review did not provide an Article 6 compliant route for determining those rights.

27. Mr Capewell submitted that there is a short answer to the contention that the Claimants’ dismissals engage Article 8 ECHR. None of the domestic or ECHR authorities support the proposition that dismissal simpliciter engages Article 8.

28. Turner concerned an employee who was dismissed for fraud. Mrs Turner claimed that Article 8 ECHR was engaged. Accordingly she contended that the ET should apply a proportionality test rather than the “range of reasonable responses test”. The Court of Appeal held that Article 8 might be engaged but it would not be applicable because the Claimant had brought the consequences of her action on herself. Elias LJ held at paragraph 35:

“Since Mr Galbraith-Marten accepts that but for the submission that the appellant brought the consequences upon herself, Article 8 would be engaged by virtue of the adverse effect on the appellant's reputation, it is strictly unnecessary to determine whether the consequences for future relationships or job prospects would of themselves be sufficient to engage it. I am inclined to think that they would not, although the damage to these interests does reinforce the conclusion that prima facie Article 8 is engaged because of the adverse effect of the dismissal on the appellant's reputation.”

29. Volkov concerned the dismissal of the applicant from his post of judge. The ECHR observed:

“166. The dismissal of the applicant from the post of judge affected a wide range of his relationships with other persons, including relationships of a professional nature. Likewise, it had an impact on his “inner circle” as the loss of his job must have had tangible consequences for the material well-being of the applicant and his family. Moreover, the reason for the applicant’s dismissal, namely breach of the judicial oath, suggests that his professional reputation was affected.”

In these circumstances the dismissal constituted an interference with his right to respect for private life within the meaning of Article 8 of the Convention [167]. The parties agreed that there had been an interference with the applicant’s right to respect for his private life and the court found no reason to disagree [165].

30. I accept the submission of Mr Capewell that neither Turner nor Volkov support the argument that dismissal even with its concomitant consequence of severing relationships with co-workers, does not of itself engage Article 8. In each of these cases additional features led to the engagement of Article 8 including in particular that the reason for dismissal, fraud or reprehensible conduct, had consequences on personal and professional relationships and the Applicants’ reputation. If the ECHR had considered that dismissal of itself engaged Article 8, reference to the particular consequences of dismissal for a particular reason would have been unnecessary. For example in Volkov the Court referred to these when considering whether Article 8 was engaged at all and before moving on to consider justification under paragraph 2 of Article 8.

31. The ECHR has on a number of occasions ruled that “private life” in Article 8 is a broad term not susceptible to exhaustive definition. In Sidabras v Lithuania [2006] 42 EHRR 6 the Court considered whether employment restrictions placed on the applicants because they had been KGB agents engaged Article 8. The Court held

“49… Hence, and in view of the wide-ranging scope of the employment restrictions the applicants have to endure, the Court considers that the possible impediment to their leading a normal personal life must be taken to be a relevant factor in determining whether the facts complained of fall within the ambit of Article 8 of the Convention.

50. In the light of the above, the Court considers that the impugned ban affected, to a significant degree, the applicants’ ability to pursue various professional activities and that there were consequential effects on the enjoyment of their right to respect for their “private life” within the meaning of Article 8. It follows that Article 14 of the Convention is applicable in the circumstances of this case taken in conjunction with Article 8.”

In my judgment it is material that these observations were made in determining whether the complained of treatment engaged Article 8 at all and not in deciding whether the difference in their treatment from non KGB members was objectively justified, satisfying the conditions in paragraph 2 of Article 8.

32. IB v Greece does not assist the Claimants’ case that their dismissals for redundancy fall within the scope of Article 8. IB was dismissed following pressure from his colleagues who did not wish to work with someone who was HIV positive. The Court held that Article 8 was engaged on these facts. The court observed at paragraph 70:

“It is therefore now established that both employment matters and situations involving HIV-infected persons fall within the scope of private life.”

The Court concluded that the facts of the applicant’s case fell within Article 8 as:

“It is clear that the applicant’s dismissal resulted in the stigmatisation of a person who, even if they were HIV-positive, had not shown any symptoms of the disease. That measure was bound to have serious repercussions for his personality rights, the respect owed to him and, ultimately, his private life. To that must be added the uncertainty surrounding his search for a new job, since the prospect of finding one could reasonably have appeared remote having regard to his previous experience. The fact that the applicant did find a new job after being dismissed does not suffice to erase the detrimental effect of his dismissal on his ability to lead a normal personal life.”

33. The Claimants were both dismissed for redundancy. It was not suggested that their selection for redundancy was for any reason which would affect their reputation, their private or professional relationships. Redundancy can be regarded as perhaps the least blameworthy reason for dismissal. None of the authorities relied upon by Ms Criddle support the proposition that dismissal of itself engages Article 8. In my judgment the claims in this appeal do not engage Article 8.

34. As Mr Capewell submitted Article 14 is inapplicable if Article 8 is not engaged. It adds nothing in the circumstance where the facts of the case are not within the ambit of Article 8. Since I have concluded that Article 8 is not engaged I will deal only briefly with the submission advanced on Article 14.

35. Article 14 prohibits discrimination on various grounds including “other status”. Both Ms Criddle and Mr Capewell relied upon Sidabras as supporting their respective contention that “other status” for the purposes of Article 14 did or did not include a difference in treatment because of an applicant’s occupation.

36. The applicants in Sidabras complained of employment restrictions placed on them by reference to their former employment with the KGB [37]. The ECHR stated:

“The Court will therefore establish, first, whether there has been a difference of treatment of the applicants, and, if so, whether the facts of the case fall within the ambit of Article 8 of the Convention in order to rule on the applicability of Article 14.” [39]

The Government of Lithuania had explained that not all former KGB officers suffered restrictions on their future employment. The Court observed that the impugned domestic legislation did not restrict the employment prospects of all former collaborators of the Soviet Security Service. An amnesty rule applied to members of the KGB who had only been engaged in criminal, as opposed to political investigations during their time at the KGB.

37. The ECHR in Sidabras therefore did not decide whether being a past member of the KGB was “other status” within the meaning of Article 14. Whilst having worked for the KGB was mentioned by the Court in deciding whether there was a difference in treatment between them and those who had not worked for the KGB, in this context it also stated:

“In addition, in view of the Government’s argument that the purpose of the Act was to regulate the employment prospects of persons on the ground of their loyalty or lack of loyalty to the state, there has also been a difference of treatment between the applicants and other persons in this respect. For the Court, this is the appropriate comparison in the instant case for the purposes of Article 14.” [41]

38. The case of Sidabras proceeded on the basis that the former occupation of the applicants taken together with their personal characteristics attached to them by virtue of their particular duties brought them within the ambit of Article 8. The issue of whether having been a KGB agent was such “other status” was not a question which the ECHR was asked to decide. The issue under Article 14 was whether the difference in treatment of former members of the KGB who were regarded as having been engaged in political investigations and to whom the characteristic of lack of loyalty attached had no objective and reasonable justification and whether the restriction on their future employment was proportionate. Accordingly, Sidabras is not authority for the proposition that occupation is to be treated as “other status” within Article 14.

39. In R(RJM) v Work and Pensions Secretary [2009] IAC 311 Lord Neuberger [41] agreed with the approach taken by Lord Walker in paragraph 5 to “personal characteristics” which had been used by the ECHR in examining “other status” in Article 14. Lord Neuberger held:

“Further, while reformulations are dangerous, I consider that the concept of “personal characteristic” (not surprisingly, like the concept of status) generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him. Such a characterisation approach appears not only consistent with the natural meaning of the expression, but also with the approach of the ECtHR and of this House to the issue.

40. The proposition advanced by Ms Criddle that the occupation of the Claimants, Parks Police Constables, of itself constitutes “other status” for the purpose of Article 14 is not supported by domestic authority nor that of the ECHR. No argument or justification under Article 14 such as was considered in The Belgian Linguistic Case (No2) [1979-80] 1 EHRR 252 was advanced before the ET. The Secretary of State is not a party to these proceedings.

41. As with the Article 14 argument, the contention that ERA section 200(2) fails to safeguard the Claimants’ Article 6 rights fails for the same reason as the inapplicability of Article 14. On the facts under consideration there are no Article 8 rights to be safeguarded. Whilst submissions were developed by both counsel, in light of the conclusion on the non-applicability of Article 8 whether on its own or together with Article 14, a decision on this issue is unnecessary to the outcome of the appeal.

Article 11

42. It was said by the ECHR in Demir v Turkey [2009] 48 EHRR 54 that:

“… the Court has always considered that Article 11 of the Convention safeguards freedom to protect the occupational interest of trade – union members by the union’s collective action.” [140]

The Court identified as being amongst the “essential elements of the right of association” the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members.” [145]

43. The right which is claimed in these cases is a remedy for failing to consult the trade union, UNISON, over proposed redundancies. Collective bargaining over employees’ interests falls within Article 11. Keith J held in R (Boots Management Services Ltd.) v CAC [2015] IRLR 15 at [25]:

“It is important to note that the right to form and join trade unions in Article 11 is expressed to be “for the protection of [one’s] interests”. So the ambit of such collective bargaining is an essential element of that right extends to what is required if those interests are to be properly protected.”

Loss of employment through redundancy affects employees’ interests. Collective bargaining over job losses would fall within Article 11. The Court in Demir v Turkey [2009] 48 EHRR 54 held that

“141. As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that para 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. What the Convention requires, in the Court’s view, is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests.”

44. The ECHR in Demir made it clear that while the means of affording unions their Article 11 rights are left to member states, the Article requires that they be given the means of enforcing those rights. The state has chosen consultation under TULR(C)A section 188 as the means of Trade Unions protecting employees’ interests in a redundancy situation. Unlike representation of other local authority employees, the Claimants have been deprived of that right. I do not accept the submission made by Mr Capewell that Article 11 does not go so far as to say that consultation on redundancies is mandatory or that in the event of a failure to comply there must be a right to claim compensation. Accordingly, subject to Article 11.2, in my judgment Article 11 taken together with Article 14 is engaged by the claims for protective awards.

45. Article 11.2 allows:

“The imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or the administration of the State.”

46. The Court in Demir did not accept that in the case of the groups mentioned in Article 11.2 which include the police, that

“ “Lawful” in the second sentence of Article 11(2) requires no more than that the restriction in question should have a basis in national law, and not be arbitrary and that it does not entail any requirement of proportionality.”

47. As Mr Capewell rightly stated, evidence and submissions on proportionality would be a matter for the Secretary of State who has not been joined to these proceedings. This court is in no position to express a view on the proportionality of the apparent exclusion by TULR(C)A section 280 of UNISON representing the Parks Police from the right to claim a declaration and a protective award under section 189. Without a decision on whether section 280 satisfies Article 11.2 there can be no decision on whether Article 11 applies to these claims or whether Article 6 is engaged.

48. UNISON also rely on the Collective Redundancies Directive to support their claim to a protective award under TULR(C)A section 189 for Wandsworth not consulting it over the proposed redundancies of the Parks Constables. The response of Mr Capewell that the Collective Redundancies Directive expressly excludes from its scope employees of public authorities and that the Claimants fall within this group is clearly right. Article 1.2(b) provides:

“This Directive shall not apply to –

…

(b) workers employed by public administrative bodies or by establishments governed by public law…”

Neither UNISON nor the Claimants can rely on the Collective Redundancies Directive to support their claims.

Construction of ERA Section 200(2) and TULR(C)A Section 280

49. The Human Rights Act 1998 Section 3 provides

“3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights.

(2) This section –

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity continuing operation or enforcement of any incompatible primary legislation, …”

50. At the hearing Ms Criddle provided a draft of the interpretation she proposed of ERA section 200(2) which she contended would be in accordance with the requirements of HRA section 3 and of the ECHR. The proposed interpretation reads:

“(2) In subsection (1) “Police Service” means –

(a) Service as a full member of a [virtue]constabulary maintained by an enactment, meaning a body whose sole function is to operate a police force and whose obligations in doing so are prescribed by legislation, or

(b)… Service in any other capacity by virtue of which a person has the powers or privileges of a constable in full.”

A similar interpretation of TULR(C)A section 280 was advanced.

51. The short answer to the proposed interpretation of ERA section 200(2) is that the claims of unfair dismissal by these Claimants do not engage any relevant Convention rights. There is no basis for the interpretation proposed by Ms Criddle.

52. The Court of Appeal in McKinnon held that the Council’s Parks Police were a “constabulary maintained by virtue of an enactment” within the meaning of ERA section 200(2). This was not the sole function of Redbridge Council. Ms Criddle’s proposed interpretation of ERA section 200(2) that to fall within that exclusionary provision the sole function of the employer is to operate a police force is inconsistent with the judgment in McKinnon. There is no warrant for introducing the words “police force” or “full” into section 200(2)(a).

53. Further, the interpretation of ERA section 200(2)(b) proposed by Ms Criddle lacks certainty. What are the full powers of a constable? Jackson LJ held in McKinnon of all constables:

“They all have the basic statutory and common law powers incidental to the office of constable and can exercise those powers within a defined geographical area. In the case of police constables that is now the whole of the UK. In the case of other constables the geographical area of their jurisdiction is more narrowly defined.” [54]

Jackson LJ held at paragraph 58:

“The conclusion which I come to is this. Despite being Council employees and despite being few in number, all members of the Redbridge Parks Police Service were constables in the full sense of that word. Their jurisdiction was confined to the parks and open spaces of Redbridge. Their remit was to enforce the byelaws and (subject to one or two exceptions as noted in Part 2 above) to stop people committing criminal offences in the parks).”

54. The Court of Appeal were considering cases materially indistinguishable from those of the Claimants. There is no basis to insert the words “in full” into section 200(2)(b). If “in full” is intended to mean “over an unlimited area” many constables would be excluded from the scope of the section. As in McKinnon, the Claimants had all the basic statutory and common law powers incidental to the office of constable. The fact that Parks Constables operate only within their parks is immaterial.

55. There is no basis for the interpretation of ERA section 200(2) proposed by Ms Criddle. Even on Ms Criddle’s redrafting of section 200(2), the Claimants would fall within section 200(2)(b) even if they did not come within section 200(2)(a).

56. If the exclusion of Parks Police from the right to claim a protective award does not fall within Article 11.2, TULR(C)A section 280 must be read and given effect in a way which is compatible with Article 11.1 whether taken on its own or together with Articles 14 and 6 so far as is possible to do so. In achieving such an interpretation the court may add words to section 280 if that would achieve the desired result. This is only permissible if to do so is “compatible with the underlying thrust of the legislation” as explained by Lord Nicholls in Ghaidan v Godin-Mendoza [2004] 2AC 557 at [33] or “with the grain of the legislation” or was not “inconsistent with the scheme of the legislation or with its essential principles” per Lord Rodger [121]. As emphasised by Keith J in R(Boots) v CAC at [45] and as held by Lord Rodger in Ghaidan at [110]

“… however powerful the obligation in section 3(1), it does not allow the courts to change the substance of a provision completely, to change a provision from one where Parliament says that x is to happen into one saying that x is not to happen. And, of course, in considering what constitutes the substance of the provision or provisions under consideration, it is necessary to have regard to their place in the overall scheme of the legislation as enacted by Parliament. In International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728, for instance, the Court of Appeal held that it was impossible for the court to use the interpretative obligation in section 3(1) in effect to recreate the fixed penalty scheme enacted by Parliament so as to turn it into a scheme that was compatible with article 6. As Simon Brown LJ observed, at p 758C - D, it would have involved turning the scheme inside out - something that the court could not do. Only Parliament, not the courts, could create a wholly different scheme so as to provide an acceptable alternative means of immigration control.”

57. The interpretation of section 280 advanced by Ms Criddle does not propose the removal of all reference to “constabulary” or “constable” nor could it as to do so would clearly be against the grain of the legislation. The proposed interpretation would limit the exclusionary provision to those employed by a body whose sole function was to operate a police service. This goes against the grain of the legislation by focussing on the functions of the body by whom the Claimant is engaged rather than on the service performed, whether as a member of a constabulary or as having the powers or privileges of a constable.

58. Further, for the reasons set out above when considering ERA section 200(2), the proposed interpretation lacks certainty. There is no bright line between a “full member of a constabulary” or someone with “the powers or privileges of a constable in full” and on the other hand someone who is a constable but is not a “full member of a constabulary or someone who has only some of the powers and privileges of a constable.”

59. Even if after considering Article 11.2, the claims under TULR(C)A section 189 were held to engage Article 11, in my judgment the domestic provision is not susceptible to the interpretation advanced by Ms Criddle.

Declaration of Incompatibility

60. Just as they have reserved the right to contend in a higher court that McKinnon was wrongly decided, so too do the Claimants reserve the right to seek a declaration of incompatability pursuant to HRA section 4. Notice has not been given to the Crown that such a declaration may be sought as would be required under CPR Rule 19.4A(1). If such a declaration is sought it would be for determination by a higher court after such notice has been given.

Conclusion

61. The appeal is allowed. The judgment of the Employment Tribunal of 28 September 2012 with Reasons of 23 January 2013 is set aside.

(1) The individual Claimants’ claims for unfair dismissal are dismissed.

(2) UNISON’s claim for a declaration and a protective award under Trade Union and Labour Relations (Consolidation) Act 1992 section 189 is dismissed.

62. The parties had been informed that circumstances have unfortunately led to a delay in delivering this judgment.

United Kingdom Employment Appeal Tribunal