Charles Wynn-Evans, Head of Employment at Dechert’s London office, reports on the Employment Appeal Tribunal (EAT) decision in Pay v Lancashire Police Service.This case addresses the correct approach to the test of unfair dismissal in the context of European Convention on Human Rights (ECHR) rights to private life and to freedom of expression.
The issue of the extent to which employers can rely on the conduct of their employees in their private lives outside the employment relationship as grounds for dismissal has recently been considered in the EAT decision in Pay v Lancashire Police Service (EAT/1224/02/LA — 29 October 2003). Employees may argue that what they do in their own time is their own affair and irrelevant to the employer. However, the issue is never as simple as that, as this case demonstrates.
The dismissed employee was employed by Lancashire Police Service as a probation officer. Most of his clients were sex offenders. Together with a colleague, he founded the sexual offenders’ initiative, which was a programme that ran successfully for a period of four years. He was well regarded both by his employers and by the courts for the work that he did for sex offenders and this was readily acknowledged by various witnesses on the part of the employer. Outside his job, he had a hobby of a “fire act” which he described as circus related. His employers were aware of this, and indeed he performed his act at an office open day on one occasion. This was not in any way considered offensive.
In October 1999, when probation officers were asked to declare whether they were masons, the employee confirmed that he was not a mason but listed a number of organisations with which he was associated, including the “House of Roissy”, a company of which he was a director. Lancashire Police subsequently received an anonymous fax giving information about Roissy, the employee’s involvement in it and its connection to other organisations. There was a short investigation but the police concluded that they should take no further action and referred the matter to the employer, as a result of which the employee was suspended. The employee was open about his activities, which included his performance of the fire act and the merchandising of products connected with bondage, domination and sadomasochism through Roissy’s website. He accepted that he performed shows in hedonist and fetish clubs but asserted that this would not bring the employer into disrepute.
This activity was considered by the Assistant Chief Probation Officer as an unsuitable activity for a probation officer. The principal officer of the employer’s Human Resources Department did not take issue with the fact that the applicant had paid employment outside work but considered whether or not, as a public servant and as a member of a criminal justice organisation working with sex offenders and other vulnerable groups, the employee’s activities in his private life were commensurate with his role as a probation officer and public trust in him.
Photographs on the website showed the applicant and another man using instruments of fire in the presence of semi-naked women — the photographs were captioned in a manner consistent with their being part of bondage-related activities. The employer’s view was that the activities indicated on the website were in the nature of soft pornography and degrading to women, although the employee disagreed. The employer considered that the information on the website could be “badly misinterpreted”.
The employee was dismissed and his dismissal was upheld on appeal. Both disciplinary panels took the view that the probation service had a responsibility to the public to demonstrate the integrity of its officers and that public knowledge of the relevant activities would damage its reputation. Both panels considered the Human Rights Act 1998 and considered that Article 8 (right to respect for private and family life) and Article 10 (right to freedom of expression) were not absolute rights but were “qualified” and that due regard had to be taken to the protection of health or morals and the protection of rights and freedoms of others.
The employment tribunal held that the reason for dismissal was not misconduct but was some other substantial reason, justifying dismissal within Section 98(1) of the Employment Rights Act 1996. The employment tribunal went on to hold that the dismissal by the panel was a view which any reasonable employer could have taken.
The tribunal accepted that the employee had a concern for the general reputation of the probation service, but there was equally a concern as to the effect of the relevant activities upon victims of crime, in particular victims of sex crime, as well as on offenders who are receiving the help of the probation service.
The tribunal accepted that, for a probation officer, there must be some limitation on that person’s right to freedom of expression within Article 10 and accepted that the employee had the possibility of damaging the service and his reputation and that it was reasonable that such activities should be curbed with regard to his freedom of expression. So far as Article 8 was concerned, the tribunal considered that the employee’s activities were in the public domain and, therefore, did not relate to his private life.
The EAT found no error of law in the employment tribunal’s approach, but reconsidered the interplay of unfair dismissal law and the ECHR rights incorporated into the UK by the Human Rights Act 1998. It found that it made sense for the employment tribunal first to consider fairness of dismissal under Section 98 of the Employment Rights Act 1996 since, after all, unfair dismissal could have been the tribunal’s finding as a result of procedural inadequacies.
Having found unfairness, it was then correct for the employment tribunal to address the ECHR rights. The EAT considered that the employment tribunal had to determine whether the employer had acted unfairly “having regard to the applicant’s convention rights”. In this context, this is an important qualification to the general principles.
The EAT agreed with the employment tribunal that, since what was in issue was the employee’s activities in “public”, his convention rights with regard to his private life were not infringed. So far as his right to freedom of expression was concerned, it was clear that this right was engaged and that the employee had a right to freedom of expression. However, interference with that right can be justified under Article 10.2. The EAT had no reason to question the employment tribunal’s conclusions that the employer’s decision was justifiable by reference to convention rights.
This decision cannot be taken by employers to confer on them a right to dismiss employees simply because they do not approve of their activities outside the workplace. The context is crucial and, in this case, it was the potential impact on the probation service of those specific activities conducted by the employee, given his particular role, that not only justified dismissal by reason of their incompatibility with his position but also allowed a limitation of his freedom of expression.
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