Veitch Penny LLP - Exeter | Crediton, Devon

Case

Pay v Lancashire Probation Service
Employment Appeal Tribunal - (29 October 2003)

Issues

(1) Unfair dismissal
(2) Range of reasonable responses test
(3) European Convention on Human Rights

Facts

Pay was employer as a probation officer. His work involved the treatment of sex offenders. Outside of his work he was a director of Roissy Workshops Ltd. In 2000, the police received an anonymous fax regarding Roissy’s activities and Pay’s involvement in them. The police conducted an investigation, but no action was taken apart from referring the fax to his employer, the Probation Service (“the Service”).

During the Service’s own investigation, it became apparent that Pay was involved in activities including the merchandising of products connected with bondage, domination and sado-masochism. He also stated that he performed shows in hedonist and fetish clubs. Pay was open about his activities and felt that he did not bring the service into disrepute. However, the Service was concerned about the effect of the disclosure on the victims who looked to it for help. It concluded that the activities were incompatible with the role of probation officer. On the basis that the public knowledge of his activities would damage the Service, Pay was dismissed.

He made a complaint of unfair dismissal under the Employment Rights Act 1996 and relied on the provisions of the Human Rights Act 1998, which requires that legislation be interpreted in a manner compatible with the European Convention on Human Rights. In this case, Article 8 and Article 10 were relevant, namely the rights to respect for private life and to freedom of expression, respectively.

The Tribunal found that the dismissal was not unfair and fell within the range of responses of a reasonable employer. The Tribunal went on to find that the right to a private life outlined in Article 8 of the Convention had not been breached. This was because Pay’s activities could not be seen as part of his private life as they were in the public domain. As with other professional people, a probation officer did not cease to be a probation officer outside hours of work. With regard to Article 10, it was held that the right was engaged but the Tribunal accepted that the activities were such that they may damage the Service’s reputation. Accordingly, it was reasonable for Pay’s activities to be curbed - there was no unjustified interference with his freedom of expression, and dismissal had been a proportionate response.

The employee appealed the decision, arguing that the Tribunal had applied the wrong test. It had been insufficient to consider the employer’s action simply by reference to what a reasonable employer would do in the circumstances. It should have considered the expectation that the reasonable employer would also respect an individual’s rights and act accordingly.

Decision

The appeal was dismissed.

Article 8 was not engaged because Pay’s activities had been publicised and undertaken in public. Also, whilst Article 10 was engaged, the Service’s actions were in pursuance of a legitimate aim, namely to demonstrate to the public the integrity of its officers and to protect its reputation. This was enhanced as Pay worked with sex offenders and vulnerable people. The evidence had demonstrated that Pay was not willing to sever his ties with Roissy, and the option of alternative deployment did not arise as the activities were considered to be incompatible with any probation officer post.

Comments

As a result, the Tribunal had come to the correct conclusion. Pay’s activities outside work were incompatible with his work as a probation officer, and were potentially damaging to his employer. The decision to dismiss him had been a proportionate one, and after balancing the competing interests of the parties there was found to be no breach of his rights under Articles 8 and 10 of the European Convention.