[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]
No, says the Court of Appeal in Turner v East Midlands Trains.
This case concerned the dismissal of a train conductor for alleged ticket irregularities. The employment tribunal applied the 'band of reasonable responses' test to both the fairness of the employer's investigation, and its ultimate decision to dismiss for the purposes of section 98 (4) of the ERA 1996 and found the dismissal fair.
The question was whether the tribunal was right to do so if Article 8 of the ECHR (right to respect for private and family life) were engaged. The tribunal found that Article 8 was not in fact engaged. But even if it were, and section 98 (4) had to be read compatibly with Article 8 (in accordance with Section 3 of the Human Rights Act 1998), the tribunal considered that (applying X v Y) the 'band of reasonable responses' test is in itself compatible with Article 8.
On appeal to the Court of Appeal the claimant pursued the argument that Article 8 was engaged and therefore the employer's investigation did not satisfy the alleged stricter procedural requirements which the proper protection of Article 8 rights requires. The employer argued that the claimant could not argue that her Article 8 rights had been infringed when she had brought the consequences on herself. That question could not be answered, said the Court of Appeal, until the fairness of the procedures and the proportionality of the sanction have been determined.
However, the 'band of reasonable responses' test which, according to the case law such as A v B, requires a heightened standard to be adopted where the consequences of dismissal are particularly grave, adequately satisfies any Article 8 requirements as to procedure and thereby secures the benefit of the Convention right.