Towards a More Conventional Approach: Article 10 and Unfair Dismissal in England

This case note considers the case of Aghajanyan v Armenia and gives comment on how it impacts protection for Article 10 Convention rights in the context of the employment relationship, with particular focus on how it might impact the development of the English law of unfair dismissal in the context of both current and future law. The note highlights that Aghajanyan reinforces the robust Article 10 protection for certain types of expression within the employment relationship, notwithstanding any countervailing contractual obligations or duties which a speaker has to their employer, and outlines the analytical approach which the Strasbourg court will expect of national courts and tribunals with respect to applying a proportionality analysis when dismissal is consider (which, in the context of English unfair dismissal law, overlays the test of reasonableness which is specified by statute). The concept of an Article 10 ersatz whistleblower is also considered, namely whether the application of a Convention proportionality test, actually creates a middle ground of enhanced protection for those raising matters of public interest but don’t meet the strict tests under English law for formal statutory protection as whistleblowers. It will conclude that English tribunals’ rather inconsistent approach to Article 10 protection in the context of unfair dismissal is ripe for review in line with Aghajanyan, and that now is particularly appropriate time for such a review given the expansion of the unfair dismissal right under English law.