Appeal No. UKEAT/0274/06/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 October 2006

Before
HIS HONOUR JUDGE McMULLEN QC
MR K EDMONDSON
MR T HAYWOOD

MR N ALI	APPELLANT

SOVEREIGN BUSES (LONDON) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr David Massarella
(of Counsel)
Messrs Deighton Guedalla Solicitors
Top Floor
30/31 Islington Green
London
N1 8DU	
For the Respondent	Mr Russell Bailey
(of Counsel)
Moorhead James Solicitors 
Kildare House
3 Dorset Rise
London
EC4Y 8EN	

Summary
Unfair Dismissal – Reasonableness of dismissal
Human Rights
The Claimant bus driver was charged with arson of the bus he drove.  He was then summoned to a disciplinary investigation and hearing, but on his solicitor’s advice refused to say anything on the ground that it interfered with his right to silence under the European Convention article 6.  His claim of unfair dismissal was dismissed by the employment tribunal, which held that the Convention was not engaged.  On appeal this point was upheld.  Notwithstanding the Claimant’s refusal to attend, the investigation was flawed.  The case of unfair dismissal in its simple sense was remitted for hearing to a different employment tribunal, where the human rights argument will not be rerun.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about unfair dismissal in the context of the Convention right to silence in criminal proceedings.  The judgment represents the views of all three members.  We will refer to the parties as Claimant and Respondent.

Introduction
2.	It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting over two days at Watford, Chairman Mr R Postle, registered with reasons on 1 March 2006.  The Claimant was represented there by a Solicitor and today by Mr David Massarella, the Respondent by Mr Russell Bailey, both of Counsel.  The Claimant claimed unfair dismissal and violation of his Convention rights.  The Respondent contended it dismissed him for gross misconduct, fairly.

The issues
3.	The essential issue was not defined by the Employment Tribunal but in written submissions on behalf of the Respondent, of which we were reminded today and to which there have been no dissent by Mr Massarella, the principal issue was whether or not the Claimant’s disciplinary hearing should have been adjourned pending the outcome of criminal proceedings against him.  The Tribunal decided that the Claimant was not unfairly dismissed and that his arguments under the Human Rights Act 1998 were not well founded.  He appeals.  Directions giving further directions and sending this appeal to a full hearing were given in chambers by HHJ Peter Clark.  

The legislation
4.	The relevant provisions of the legislation are the Employment Rights Act 1996 ss 98(1) and 98(2) which include conduct as a potentially fair reason for dismissal.  Fairness is dealt with by section 98(4) which provides the following:-

“98.	
(4)	Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)
(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b)	shall be determined in accordance with equity and the substantial merits of the case.”

5.	The relevant provisions of the Human Rights Act 1998 are as follow:-

“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.
6	(1)	It is unlawful for a public authority to act in a way which is incompatible with a Convention Right.
	…..
	(3)	In this section ‘public authority’ includes-	
		(a)	a court or tribunal…”

6.	Article 6(1) of the Convention scheduled to the HRA at Schedule 1 provides the following:-

“Article 6:
(1)	In the determination of … any criminal charge against him, everyone is entitled to a fair ... hearing … by [a] …. tribunal.
(2)	Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

7.	The Tribunal directed itself in accordance with the Employment Rights Act and the relevant authorities cited to it (see paragraph 23 below) to which we will return.  It referred in summary to Article 6 but not to ss3 or 6 of the Human Rights Act.  It is not unfair to say that it paid little attention to this argument.  

8.	The powers of a trial judge in the Crown Court to exclude previous statements is provided in the Criminal Justice Act 2003 ss114(1)(d) and 119.  Of course, the Police and Criminal Evidence Act 1984 section 78 gives a further wide power to a judge to exclude any material on the grounds of fairness:-

“78 (1)	In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that he court ought not to admit it.
(2)	Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.

9.	It is agreed that the statutory dispute resolution procedures introduced into employment law on 1 October 2004 are not relevant to these proceedings since the dismissal of the Claimant preceded them.  But we did receive a written argument as to whether these new procedures introduced some form of compulsion for an employee to participate in disciplinary proceedings; however, we will say no more about them except to be grateful to both counsel for their submissions on them.

The facts
10.	Respondent is a limited company which provides a bus service in North London.  The Claimant was employed by it as a bus driver from about 2001 at a salary of £380 a week until the relationship ended by his dismissal on 8 June 2004.  The Employment Tribunal found this:-
“3.	On 6 March 2004 the bus which the Claimant had been driving caught fire whilst stationary in the Stanmore Bus Station, with only the Claimant inside the bus.  By the time the Fire Brigade arrived, the bus, with a value of £60,000 had been damaged beyond repair.  The bus’s fire extinguisher had not been used, and was still its glass compartment.”

The Claimant gave two accounts of the above event in interviews first with the Respondent’s management, and then its insurer.  

11.	The Respondent’s operations manager on 11 May 2005 was told by the police that the Claimant had been charged with arson, he had been interviewed twice in accordance with PACE and had given full answers, not a “no comment” interview.  He attended his first criminal proceedings on 17 May 2004 and an investigatory meeting with the Respondent on 18 May 2004 when he refused to answer questions on his solicitor’s advice.  He was then required to attend a disciplinary hearing with Mr MacPherson the same day.  He was advised to see his union representative since he had the advantage to be a member of the TGWU.  He was charged with failing to safeguard company property on 6 March.  

12.	The Claimant was given a further opportunity to attend a disciplinary hearing, he not having attended on 18 May, and he was warned that if he failed to attend it would mean that his situation would be reviewed in his absence and a decision made which might affect his future employment.  Again the Claimant chose not to attend on the 8 June 2004 but the meeting was attended by his union representative Mr Kramo.  Mr MacPherson had the accident report, a report from the Fire Emergency Planning Authority, an engineering and maintenance inspection report and an account by Mr Teixera. The Tribunal found this:-

“13.	Mr MacPherson then studied photographs of the burnt out bus ….  Mr MacPherson noted that the photographs … showed hardly any damage to the back and side engine compartments and doors.  However, extensive damage to the interior of the bus, especially to the rear, was noted.  Mr MacPherson concluded that the photographic evidence did not support the Claimant’s version of events.
14.	Mr MacPherson further considered the Claimant’s version of events, noted that the fire extinguisher had not been used, that the Fire Brigade report stated that an accelerant had been used, and the fact that seating on the bus is fire retardant and therefore very difficult to set alight.  Mr MacPherson reminded the Hearing that the charge against the Claimant was that of failing to safeguard company property, and not that he actually started the fire.
15.	Mr MacPherson then considered the Claimant’s staff file, the evidence of training he had received.  His induction stated he had received training in the fire and breakdown procedure.
16.	Mr MacPherson then adjourned the Hearing to re-assess the evidence available and concluded that it was reasonable to assume that
a)	the Claimant’s version of events contradicted the Fire Report.  The evidence strongly suggested the fire had started inside the bus.
b)	if the Claimant had been seated in the middle of the bus he should have noticed the smoke, noise, smell, heat or the flames.
c)	the seats were made of fire retardant material, so the fire must have been going for some time to become such a large flame.  Further, some action to contain the fire, by using the fire extinguisher, should have been attempted.  The Claimant found time to fetch his coat and bag and indeed, returned to the bus after dialing 999 to retrieve the cash tray.
d)	Mr Kramo, the Claimant’s Trade Union Representative, suggested the company await the outcome of the Claimant’s Court Hearing before pursuing the matter any further. Mr MacPherson considered that there may be some merit in this, however, the Claimant had not attended himself to suggest this, further this was likely to result in an unreasonable and lengthy delay during which time the Respondents would be required to pay the Claimant.
17.	Mr MacPherson concluded that the Claimant had contributed to the extent of the damage by his actions/inactions, his actions constituted gross negligence or gross misconduct and found the charge of failing to safeguard company property on 6 March proven and that the only suitable award was summary dismissal.”

13.	An appeal was conducted on the ground that the Claimant did not have the opportunity to state his case or to hear the nature of the allegations.  His solicitors wrote asserting the Claimant’s right to a fair trial under the Convention.  The Claimant attended with his union representative, but failed to answer questions put to him.  He was dismissed that day.  A year later, on 21 July 2005 at the end of a two week trial at the Central Criminal Court, he was found not guilty of arson.  

The Claimant’s case
14.	The Claimant submitted that the Tribunal had erred in law in two respects. We will divide them as did the Claimant: first, ordinary unfair dismissal.  This is put on the basis of pre-Human Rights Act authorities.  An attack was launched on paragraph 30 of the Tribunal’s judgment:-

“30.	The Claimant was given an opportunity to attend a Disciplinary Hearing which had been re-arranged.  He chose not to attend but his Union Representative was in attendance.  He could have assisted the company at that stage in clarifying any misunderstanding or areas of dispute.  The Claimant was given an opportunity to appeal, attended the Appeal Hearing, again with his Union Representative, but chose on the advice of his Solicitor, not to participate in the appeal process by refusing to answer any questions.  The company was entitled to ask these questions and there is no law that suggests the fact that criminal charges are pending the disciplinary process should be put on hold.”

15.	With Mr Massarella’s agreement, Mr Bailey being unable to assist us on this matter, we directed a correction be made according to the powers we have under the Employment Tribunals Act 1996 s35 to provide the following:-  

“The company was entitled to ask these questions and there was no law that suggest that the fact that while criminal charges are pending, the disciplinary process should be put on hold.”  

It was contended that in the light of the pre-Human Rights Act authorities the Tribunal had failed to consider the relevant factors necessary for it to acquit the Respondent of failing to make proper investigations and of considering all relevant matters.  Further, it was contended that on the admission of Mr MacPherson by reference to the notes he had taken, key questions remained unanswered, which Mr Ali was not there to be asked about. 

16.	The Respondent, and the Tribunal, had erred in failing to pay attention to the fact that the real reason for his non-attendance was in the hands of his trade union representative, furnished as he was with a letter from the Claimant’s solicitors. The Respondent had impugned him for failing to come and himself present his own reason for not attending.  

17.	The Respondent had simply not considered any other alternatives which would have involved a delay such as whether he could be retained on pay or less pay. The Respondent’s four reasons, bought forward in support of the Tribunal’s judgment implicitly, are not sustainable: they are that the prosecution had sufficient knowledge to bring charges; that the cost of keeping him on was not relied on at the time; that there was no opportunity offered to the Claimant to be suspended without pay and that it was unlikely that someone truly innocent would fail to make a response.  

18.	In summary, the Tribunal had failed to apply correctly the investigative stage pursuant to Burchell and since the dismissing officer had real doubts, the decision could not stand.  In order to head off an argument as to the law relating to bailment, it was contended that this was inapplicable on the basis that the bailee in this situation, that is Mr Ali in control of his employer’s bus, had offered an explanation as to why he could not himself account for the damage caused to the bus, that is reliance upon solicitor’s advice.  

19.	According to the authorities under the Human Rights Act, it was necessary for the Employment Tribunal to construe section 98(4) Employment Rights Act compatibly with the Convention pursuant, its interpretative obligation under section 3.  The Tribunal had failed to carry out the structured exercise suggested by Lord Justice Mummery in X v Y [2004] ICR 1634 CA.  It was contended further that the refinement of these tests in Lord Justice Mummery’s again judgment in Copsey v WWB Devon Clays Ltd [2005] IRLR 811 had not been applied either.  The fact that the Respondent was in the private sector, and this was a dispute between two private citizens, did not affect the approach to the interpretative obligation see X v Y.  

The Respondent’s case
20.	On behalf of the Respondent it is contended that albeit there are some difficulties with paragraphs 24 and 30 of the Tribunal’s judgment, it was implicit that it had the right tests.  Mr Bailey on behalf of the Respondent acknowledged that some of these difficulties might have been caused by the incorrect application of the law relating to the requirement to deliver written reasons. The Tribunal failed to record accurately what he had submitted in the lapse of time between the last date of the hearing and the order by HHJ Clark that the reasons be produced.  Mr Bailey conceded that the holding was not phrased as it should be, but nevertheless the Tribunal got it right.  

21.	Taking the points which Mr Massarella introduced, he contended that the Tribunal, in accordance straightforwardly with ordinary unfair dismissal law, applied the factors in British Home Stores v Burchell.  One of the factors arising from the authorities, to which we will turn, is delay and there was to be a substantial delay as it happened 12 months, between dismissal and acquittal.  The Respondent had at least an account by the Claimant of what went on and from that account a conflict opened up with the objective material available to Mr MacPherson.  The fact that there had been a charge indicated that there was at least satisfactory evidence for there to be a conviction by a jury and the Crown would prosecute.  The Claimant did not offer to hand over his interview with the police in order that his side of the account could be given fairly subject to the provisions of PACE.  It was contended that the Burchell test had been applied correctly, even thought there were questions in the mind of Mr MacPherson.  There was a substantial body of material as to which he could make his judgment.  

22.	As to bailment, Mr Bailey contended that the simple proposition that where an employee is in charge of an expensive piece of his employer’s equipment he has a duty to look after it and explain, if it is damaged, what has happened to it pursuant to the reversal of the burden of proof under the law of bailment, has equal application here.  Although a substantial list of questions was prepared, the relevance of these is not assured since they were never asked.  The Human Rights Act is not engaged.  The principal grounds are that there is no compulsion to answer questions by the employer and the employer here is not a public body.  There is no penalty attending upon a failure to answer the questions of an employer.

The legal principles
23.	The legal principles in this case appear to be as follow.  In respect of simple unfair dismissal, we accept the account of the law given by the Employment Tribunal:-

“27.	An important case as the Respondent’s Counsel has highlighted in deciding such matters is the well known case of British Home Stores v Burchell 1978 IRLR 379 which in summary states, in a case where the employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair, an Employment Tribunal has to decide whether an employer who discharged the employee on the ground of a misconduct in question, entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time. This involves three elements. First, there must be established by an employer the fact of the belief: that the employer did believe it. Second, it must be shown the employer had in mind reasonable ground upon which to sustain that belief. Third, the employer at that stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

24.	Where there is an outstanding criminal proceeding, it is common ground that one of the factors to be considered is whether or not there can be a hearing of those proceedings before disciplinary action is taken.  In Carr v Alexander Russell Ltd [1976] IRLR 220 Lord McDonald in the Court of Session said this:-

	“4.	Counsel were agreed that the fairness of the dismissal fell to be determined in the light of the circumstances known to the employers at the time.  The fact that subsequent events justified their action would not assist them if in the state of their knowledge at the time of dismissal they had acted unfairly.  In this case the Tribunal have accepted that the Respondents were told by the police that the appellant had been caught red-handed at the quarry where the missing property was found, had been arrested and charged with the theft.  They held, rejecting the evidence of the appellant, that he had made no protestations of innocence to the Respondents.  He made no attempt to implement the grievances procedure of which he was aware in terms of his contract of employment.  In that state of affairs, I am not prepared to hold that the Respondents acted unfairly in dismissing the appellant summarily.  In some situations suspension pending the final outcome of criminal proceedings may be more appropriate than dismissal.  In a case such as the present this would, in my opinion, be impracticable.  It took seven months before the appellant was brought to trial and convicted.  It would be unrealistic to expect the Respondents to retain a labourer in their employment over this period of time pending the final outcome of his trial.
6.	The Tribunal have also held that it would have been improper for the Respondents to carry out any form of internal inquiry into the circumstances of the theft while a criminal prosecution was pending.  I am in no doubt that this is correct.  If he had been asked for an explanation and had denied his implication matters would not have been advanced in any way; had he admitted implication not only would his dismissal then be warranted but his subsequent trial might be prejudiced.”

25.	Shortly thereafter, Mr Justice Phillips and members in the EAT in Harris Ltd v Harrison [1978] ICR 1256 set out the principles to be applied in the following way:-

“However, upon one point in the judgment in that case we take a somewhat different view.  In that case, both in the industrial tribunal and in the Court of Session, it is suggested to be improper after an employee has been arrested and charged with a criminal offence alleged to have been committed in the course of his employment, for the employer to seek to question him when the matter of dismissal is under consideration.  While we can see that there are practical difficulties, and that care is necessary to do nothing to prejudice the subsequent trial, we do not think that there is anything in the law of England and Wales to prevent an employer in such circumstances before dismissing an employee from discussing the matter with the employee or his representative; indeed, it seems to us that it is proper to do so.  What needs to be discussed is not so much the alleged offence as the action which the employer is proposing to take.
It is often difficult for an employer to know what is best to do in a case of this kind, particularly where the employee elects to go for trial.  Unfortunately it may be many months before the trial takes place, and it is often impractical for the employer to wait until the trial takes place before making some decision as to the future of the employee so far as his employment is concerned.  At first sight those not familiar with the problem tend to say that it is wrong to dismiss the employee until his guilt has been established.  Further experience shows that this is impractical. In the first place, quite apart from guilt, involvement in the alleged criminal offence often involves a serious breach of duty or discipline.  The cashier charged with a till offence, guilty or not, is often undoubtedly in breach of company rules in the way in which the till has been operated.  The employee who removes goods from the premises, guilty or not, is often in breach of company rules in taking his employer’s goods from the premises without express permission; and it is irrelevant to that matter that a jury may be in doubt whether he intended to steal them.  Such examples could be multiplied.  What it is right to do will depend on the exact circumstances, including the employer’s disciplinary code.  Sometimes it may be right to dismiss the employee, sometimes to retain him, sometimes to suspend him on full pay, and sometimes to suspend him without pay.  The size of the employer’s business, the nature of that business and the number of employees are also relevant factors.  It is impossible to lay down any hard and fast rule.  It is all a matter for the judgment of the industrial tribunal.”

26.	That case was followed in Harris v Courage (Eastern) Ltd [1981] ICR 496 EAT by Mr Justice Slynn and members who set out the principles on behalf of the majority in that case taking an attenuated view of Carr for it said this:-

	“It does not seem to the majority of this appeal tribunal that there is a hard and fast rule that, once a man has been charged, an employer cannot dismiss him for an alleged theft if the employee is advised to say nothing until the trial in the criminal proceedings.  There may be cases where fairness requires that the employer should wait.  In the judgment of the majority members of the appeal tribunal, all the circumstances have to be looked at.  It is essential that the employer should afford the employee the opportunity of giving his explanation and he should be made to realise that the employer is contemplating dismissal on the basis of the matters which are explained to the employee.  If the employee chooses not to give a statement at that stage, it seems to the majority that the employer is entitled to consider whether the material which he has is strong enough to justify his dismissal without waiting.  If there are doubts, then no doubt it would be fair to wait.  On the other hand, if the evidence produced is, in the absence of an explanation, sufficiently indicative of guilt, then the employer may be entitled to act.”

A very extensive minority judgment was given by Mr T Goff in that case but that was not followed when an appeal was made against the majority judgment to the Court of Appeal: see [1982] ICR 530 where in a short judgment Mr Justice Slynn in the majority was approved fulsomely.  

27.	Finally in Lovie Ltd v Anderson [1999] IRLR 164 the EAT Lord Johnston and members in Edinburgh said the following:-

	“This tribunal recognises that an employer, particularly a small employer, is placed in a dilemma when criminal charges are brought against an employee in circumstances relating to his employment, as in the present case.  In our opinion it goes too far to state that the employer is precluded from carrying out any investigation further into the matter if investigation has already been carried out by him to some extent, but equally he must be careful not to trap the employee into making any sort of admission against his interests, which the criminal law does not require him to do, and indeed protects him in that respect.  In an extreme case when the first notice that the employer gets of a problem is the intimation to them that the police are bringing charges against an employee, it would be incumbent in our opinion upon the employer to embark upon some form of investigation involving, amongst other things, an interview with the employee to give him an opportunity to state his position, even if that opportunity is subsequently not taken by the employee in the sense that the investigation and the interview are fruitless.  Unless such is carried out in those circumstances, the third part of the Burchell [1978] IRLR 379 test is not met, and while those tests are not set in stone they remain a useful guide.  On the other end of the spectrum, the circumstances may be so blatant, and the circumstances sufficiently brought to the attention of the employer to warrant a reasonable belief as to guilt, further investigation may not be necessary.  There are many situations that will fall within that spectrum which will usually require further consideration of the position by the employer including interview, after charges are brought before dismissal can be reasonably effected.”

28.	Those then are the principles which apply to the determination of whether or not it is right to press on with disciplinary proceedings when there is looming a criminal trial. A number of factors are to be considered.  
29.	As to the application of the Human Rights Act in employment law the Court of Appeal in X v Y (above) said the following:-

“64.	As indicated earlier, it is advisable for employment tribunals to deal with points raised under the HRA in unfair dismissal cases between private litigants in a more structured way than was adopted in this case.  The following framework of questions is suggested.
(1)	Do the circumstances of the dismissal fall within the ambit of one or more of the articles of the Convention?  If they do not, the Convention right is not engaged and need not be considered.
(2)	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.
	(3)	If it does, is the interference with the employee’s Convention right by dismissal justified?  If it is, proceed to (5) below.
(4)	 If it is not, was there a permissible reason for the dismissal under the ERA which does not involve unjustified interference with a Convention right?  If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.
(5)	If there was, is the dismissal fair, tested by the provisions of section 98 of the ERA, reading and giving effect to them under section 3 of the HRA so as to be compatible with the Convention right?
66.	In my view, however, the interpretative duty imposed by section 3 applies to the same degree in legislation applying between private parties as it does in legislation which applies between public authorities and individuals.  There is nothing in the BRA which, either expressly or by necessary implication, indicates a contrary intention.  If the position were otherwise, the same statutory provision would require different interpretations depending on whether the defendant was a public authority or a private individual.  I acknowledge that Parliament could, without perversity, have intended such a distinction.  After all, public authorities are, but private entities are not, subject to sections 6 and 7 of the HRA, and yet the dividing line between public authorities and private entities is sometimes very fine, and can lead to distinctions which may appear to lead to somewhat arbitrary results.  Nevertheless, sections 6 and 7 show that Parliament was alive to the distinction between public authorities and private entities, and yet drew no distinction when it came to enacting section 3.  In my judgment, the language of section 3(1) is plain: it should be accorded its clear and unqualified meaning.”

30.	A simpler approach was adopted by Lord Justice Mummery in Copsey, where he referred to his tentative guidance in X v Y and we accept that there is now a two stage test which is:-

“24.	The first issue is whether the circumstances of Mr Copsey’s dismissal fall within the ambit of Article 9.  If there has been no material interference with the right guaranteed by Article 9, the Article is not engaged and its impact on the dismissal need not be considered further.  The case will be outside the ambit of Article 9(1).
25.	The second main issue is whether, if the circumstances of the dismissal engage Article 9, the dismissal is justified.  This involves consideration of Article 9(2) and its application to specific situations.”

31.	When criminal proceedings are in play two judgments of the European Court of Human Rights are relevant.  First, in Shannon unreported 4 October 2005, the Court citing an earlier judgment to which we will return, said this:-

“34.	The Court recalls that in previous cases it has expressly found that there is no requirement that allegedly incriminating evidence obtained by coercion actually be used in criminal proceedings before the right not to incriminate oneself applies.  In particular, in Heaney and McGuinness (cited above; §§ 43-46), it found that the applicants could rely on Article 6 §§ 1 and 2 in respect of their conviction and imprisonment for failing to reply to questions, even though they were subsequently acquitted of the underlying offence.  Indeed, in Funke, the Court found a violation of the right not to incriminate oneself even though no underlying proceedings were brought, and by the time of the Strasbourg proceedings none could be (cited above, §§ 39, 40).
35.	It is thus open to the applicant to complain of an interference with his right not to incriminate himself, even though no self-incriminating evidence (or reliance on a failure to provide information) was used in other, substantive criminal proceedings.
40.	Secondly, the Court notes that information obtained from the applicant at interview could have been used at a subsequent criminal trial if he had relied on evidence inconsistent with it.  Such use would have deprived the applicant of the right to determine what evidence he wished to put before the trial court, and could have amounted to “resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused”.  The limitation on use in paragraph 6(b) of Schedule 2 cannot be seen as providing procedural protection for the applicant.  It is true, as the Government note, that the applicant might not have been tried, and that even if he had, it would have been open to the trial judge to exclude the information obtained at interview.  Both of those points, however, depend on the evidence actually being used in subsequent proceedings, whereas it is clear from the case-law referred to above that there is no need for proceedings even to be brought for the right not to incriminate oneself to be at issue.
41.	The Court concludes that the requirement for the applicant to attend an interview with financial investigators and to be compelled to answer questions in connection with events in respect of which he had already been charged with offences was not compatible with his right not to incriminate himself.  There has therefore been a violation of Article 6 § 1 of the Convention.”

32.	The references to the earlier judgments include Weh v Austria [2005] 40 EHRR 890 where the Court said this:-

“39.	The Court reiterates that, although not specifically mentioned in Art.6 of the Convention, the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Art.6.  Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Art.6.’  The right not to incriminate oneself in particular presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused.  In this sense the right in question is closely linked to the presumption of innocence contained in Art.6(2) of the Convention.
40.	The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent.
41.	A perusal of the Court’s case law shows that there are two types of cases in which it found violations of the right to silence and the privilege against self-incrimination.
42.	First, there are cases relating to the use of compulsion for the Purpose of obtaining information which might incriminate the person concerned in pending or anticipated criminal proceedings against him, or—in other words—in respect of an offence with which that person has been “charged” within the autonomous meaning of Art.6( 1). 
43.	Secondly, there are cases concerning the use of incriminating information compulsorily obtained outside the context of criminal proceedings in a subsequent criminal prosecution.
44.	However, it also follows from the Court’s case law that the privilege against self-incrimination does not per seprohibit the use of compulsory powers to obtain information outside the context of criminal proceedings against the person concerned.
45.	For instance, it has not been suggested in Saunders that the procedure whereby the applicant was requested to answer questions on his company and financial affairs, with a possible penalty of up to two years’ imprisonment, in itself raised an issue under Art6(l).  Moreover, in a recent case the Court found that a requirement to make a declaration of assets to the tax authorities did not disclose any issue under Art.6( I ), although a penalty was attached to a failure to comply and the applicant was actually fined for making a false declaration.  The Court noted that there were no pending or anticipated criminal proceedings against the applicant and the fact that he may have lied in order to prevent the revenue authorities from uncovering conduct which might possibly lead to a prosecution did not suffice to bring the privilege against self-incrimination into play.  Indeed obligations to inform the authorities are a common feature of the Contracting State legal orders and may concern a wide range of issue.
46.	Furthermore the Court accepts that the right to silence and the right not to Incriminate oneself are not absolute as for instance the drawing of inferences from an accused’ silence may be admissible.  Given the close link between the right not to incriminate oneself and the presumption of innocence, it is also important to reiterate that Art.6(2) does not prohibit, in principle, the use of presumptions in criminal law.”

Conclusions
33.	With those principles in mind, we prefer the arguments of the Claimant on unfair dismissal and have decided that the appeal should be allowed and the case remitted.  On the other hand we uphold the submissions of the Respondent on the human rights point.  

Unfair dismissal
34.	 We agree with the submission that the Employment Tribunal erred in law in paragraph 30 of its judgment as we have corrected it.  We have done the best we can, but this still does not solve the problem that the Tribunal did not address itself correctly to the law as we have set out in the authorities above.  The factors which are to be taken into account in determining whether the disciplinary hearing should go ahead while criminal charges are pending are set out in those authorities.  We are satisfied that the Tribunal was correctly addressed by Mr Bailey in his written submission on this and that the Tribunal has misinterpreted it when it cites his submission at paragraph 24.  The law does require a careful balancing of the factors which are in play and this does not seem to have been done by the Employment Tribunal here which indicates to us that it is not correct for us to find that it was implicit in its judgment that it had these factors to the fore. That means, in legal terms, that the question is whether despite the error we have found, the judgment is unarguably correct. We cannot say that.  

35.	With respect, the Tribunal shows no indication of having understood what the central issue was as we have defined it through Mr Bailey’s submission to it, and what factors were to be considered in deciding whether a reasonable management would have delayed the disciplinary hearing pending the Old Bailey trial.  We are asked to substitute our judgment for that of the Tribunal on this matter; we cannot.  There is a range of factual circumstances which must be considered arising from the authorities we cited.  This must be done by it.  Secondly, we accept that the Tribunal did not properly consider whether the Respondent had carried out a reasonable investigation.  Once it was admitted by Mr MacPherson that there were key questions he still needed to ask the Claimant at the time of the dismissal, it was strongly arguable that this employer did not discharge its responsibilities, conducting a reasonable investigation into misconduct, when it did not consider the implications.  It dismissed the Claimant with those key questions unanswered and, it has to be said, some of those points were accepted by Mr MacPherson.  For that reason therefore the unfair dismissal point will be remitted to a Tribunal.

The Human Rights Act
36.	It must be borne in mind that this case does not present the purest circumstances.  The Claimant did not at all times decline to give his account of the burning bus, for he had twice been interviewed officially about this.  This has two consequences: he had volunteered information to his employer and its insurer, and these could be put in evidence at the trial, subject to the trial judge’s permission.  Secondly, it indicates that there was material, at least in respect of the interview with Mr Kinsella (we understand the interview with the insurers was not available to Mr MacPherson) upon which a judgment could be made without demanding a statement from the Claimant.  Nevertheless the Human Rights Act does present a number of issues in this case.  

37.	We are grateful to Mr Massarella for his analytic approach to the five points, put by Lord Justice Mummery in X v Y above.  However, the simple submission made by Mr Bailey is correct.  We do not shrink from the introduction of human rights standards emerging from the Convention into employment law.  Elementary standards of fairness under s98(4) include such standards as are invoked by the Convention, but it is very different to say that there is an engagement or an applicability of the Convention in this particular case. It is worth noting that the Convention right here, the right to fair trial, is different from those invoked in both the authorities which we have relied on, X v Y and Copsey which engaged articles 8 and 14, and 9 respectively.  Mr Bailey’s simple submission is correct, there was no compulsion.  In all of the authorities which we have looked at there has been some form of penalty placed upon a person who did not cooperate with the state authorities either at trial or in a proto-trial procedure, dealing for example with financial regulation and investigations pursuant to statutory powers.  The Claimant was not obliged to give answers to Mr MacPherson.  It is true that there were consequences to him which were pointed out in advance, which were that if he were absent decisions affecting his future might well be taken.
38.	The right given to citizens by the jurisprudence under Article 6(2) is a right to stay silent, effectively a privilege against self incrimination in a criminal procedure.  The Claimant was free to exercise that right when he stood trial at the Old Bailey. As a matter of record he did not, he gave evidence before the jury, the prosecution gave evidence in the form of his police interviews and so, as a matter of fact, he freely exercised his right to give or to withhold evidence himself.  It must also be borne in mind that the way in which the Respondent approached this matter was indeed to consider whether or not human rights were engaged, but we can well understand an employer not fully understanding that matter even when it was expressed as cogently as it was on behalf of the Claimant by his solicitors.  

39.	The second winning point made by Mr Bailey is that this is not a public authority.  Sovereign Buses Ltd is not an instrument of the state and is in no position to carry out powers on behalf of the state.  The interpretative obligation in section 3 HRA on the Tribunal is to ensure if possible that section 98(4) ERA is not incompatible with the Convention.  We do no violence to the Convention, applying Lord Justice Mummery’s five stage approach, by saying that elementary standards of fairness are invoked by section 98(4), the jurisprudence which has grown up around it, and the ACAS Code.  Provided the principles set out in the authorities which we have applied are in focus, there will be satisfactory recognition of the standards of fairness invoked by the Convention.  But put formally, there is no requirement in this case for a read across of the right to silence under article 6(2) in the Crown Court into what effectively is an internal disciplinary procedure in accordance with fairness under section 98(4). We reject Mr Massarella’s contentions under the Act, elegantly articulated as they have been.

40.	We further accept Mr Bailey’s engaging proposition that if there is a problem with the relationship between the Convention right and the way we have interpreted the law, it is a problem which arises in the Crown Court and not in the Employment Tribunal.  If the safeguards now vouchsafed to a trial judge under the Criminal Justice Act 2003 and PACE are insufficient to safeguard an employee in an employment situation giving information, that is a matter which will arise in the Crown Court but not in the disciplinary process or the Employment Tribunal.  We also note that the cases which have been cited to us, where investigative procedures have been under attack, are now subject to changes made following the judgment of the European Court of Human Rights in Saunders v UK [1997] 23 EHRR 313 which affects the use to which such investigative interviews is put in subsequent criminal trials.  

Result
41.	The appeal is allowed in part. Having canvassed disposal with both Counsel we apply the factors set out in Sinclair Roche & Temperley No2.  There has been delay already; there may be delay in getting this same Tribunal together.  We have made our criticisms of the Employment Tribunal and we think, in fairness, the Claimant is correct when he says that there may be a lack of confidence in this Tribunal in the light of the mistakes in the Judgment. There is no substantial advantage, and the only disadvantage is that Mr MacPherson now resides in Ireland.  But there are measures for his evidence to be available to the Tribunal and if not then directions can be sought.  So although it was our preference to go back to the same Tribunal, we see the force in Mr Massarella’s argument.  There will be a controlled remission to a fresh Tribunal for a full rehearing where there will be no arguments on the Human Rights Act which are dismissed. The Tribunal it will have a copy of our Judgment.   

42.	This case is now quite old, the issue is now much smaller.  Mr MacPherson’s approach to this case may well be different if he heard it today since the Claimant was not charged by the company with arson, but with some lesser misconduct.  He has been acquitted of the more serious offence of arson. Conciliation is available now in the Employment Tribunal.  There is skilled representation on both sides and we urge the parties to consider this now rather than engage in a further hearing.  They are to report to the Employment Tribunal within four weeks on steps taken to conciliate this matter.