The recent case of Vining & Ors v London Borough of Wandsworth [2017] EWCA Civ 1092 represents an attempt to circumvent restrictions on certain types of officers from enjoying employment law rights - in a claim of unfair dismissal and for a protective award in respect of an alleged failure in collective consultation relating to their redundancies.

Wandsworth reorganised their parks police force and dismissed Mr Vining (V) and Mr Francis (F) from that force on the ground of redundancy. As a result, V and F brought proceedings for unfair dismissal for W’s failure to consult them during the redundancy process.

Initially, the proceedings revolved around the preliminary issue of whether V and F, as members of a parks police force, were serving “as members of a constabulary”, so as to preclude them from bringing claims in unfair dismissal (section 200 of the Employment Rights Act 1996), and U from bringing a claim for breach of consultation requirements (section 280 of the Trade Union and Labour Relations (Consolidation) Act 1992). The Court of Appeal conclusively determined these issues against members of parks police forces in Redbridge v Dhinsa [2014] EWCA Civ 178. V and F were barred in statute for bringing claims for unfair dismissal and a protective award.

So, here, V and F made an alternative argument relying on article 8. The right to respect for one's "private and family life, home and correspondence", They sought to argue that their dismissal was a breach of article 8 (either alone or in conjunction with article 14) and that section 200 of the 1996 Act and section 280 of the 1992 Act should be interpreted in a way that was compatible with the ECHR.

After reviewing the Strasbourg authorities (and placing particular weight on a decision of the Grand Chamber of the European Court of Human Rights in Martinez v Spain (2015) 60 EHRR 3), the Court of Appeal held that article 8 was not even engaged on the facts of this case. The following points of importance can be drawn from the Court of Appeal’s single, unanimous judgment:

-  “[T]he mere fact of termination is not sufficient of itself to make article 8 applicable…the Convention confers no general right to employment or to the continuation of employment” [47].

- In every case where article 8 has been found applicable to a dismissal, it was the consequences of the particular dismissal that made it so. The Court of Appeal noted that the following consequences had been relevant in previous cases: effect on applicant’s reputation; stigmatisation; impact on private life; effect on identity, self-perception and self-respect; impact on creating future social relations; and the difficulty of obtaining future employment [47].

- The concept of unfair dismissal is a domestic concept and so the fact that a dismissal is unfair does not of itself make article 8 applicable [49].

- Factors such as length of service, distress and anxiety consequent on termination and difficulty in finding new employment will not necessarily be enough, individually or collectively, to engage article 8, and are involved in every dismissal [49].

- While “it would be unwise to lay down a rule that the circumstances of a redundancy can never engage article 8”, the Court of Appeal noted that the factors engaging article 8 are “inapposite” to a collective redundancy situation where there is no imputation of wrongful conduct on the employee, no stigma, and where the legal consequences depend on the particular circumstances of the individual employees being made redundant [49]. 

In short, it appears that article 8 can only be called upon in situations where the dismissal has had an unusually disproportionate effect on the individual’s life.