Considering Pay v Lancashire Probation Service and X v Y Cases - Research Paper Example

Private Life Should Mean What It Says Introduction It is generally acceptable that employers are can dismiss employees for any misconduct, even when such misconduct falls outside the work provided that it has a bearing on the employee’s suitability for carrying out his duties. For instance, a criminal act that involves dishonesty would question the employees efficacy as a cashier at his or her place of employment, while a driving infraction would not, that is unless he is employed as a driver (Perritt, 122). However there have been instances where employees have been dismissed for activities that they did in their private lives. Two significant cases are Pay v Lancashire Probation Service and X v Y. This paper looks at the effect of these cases and acknowledges that despite their effect in employment jurisprudence, the private life of an individual who is employed should remain private as long as it is no way connected to his or her employment. These cases address the issue of the extent to which an employer can rely on the conduct of their employees in their private lives outside employment relationship as ground for dismissal. On the other hand, the employees may also argue that whatever they do during their own private time is their own affair and should not be relevant to the employer or employment. Pay v Lancashire Probation Service This case presented what would be considered the right approach to the test of unfair dismissal in the context of the European Convention on Human Rights to private life and the freedom of expression. This was a decision in the Employment Appeal Tribunal (EAT Reports 2). In this case, the dismissed employee was employed as a probation officer by the Lancashire Police Service. Most of his clients were sexual offenders. As a result, and with the help of a colleague, he founded a sexual offenders' initiative. The program ran successfully for a period of about four years. For this he was well regarded by both his employers and by the courts for the work that he was doing for the sexual offenders (Swift & Chapman, 531). Outside his employment he had a hobby that he described as being circus related. His employers were aware of this and had even witnessed it during one of the office open days. It was therefore not considered to be offensive. Later in October of 1999 when he was asked to declare the organizations with which he was associate, among them he listed the House of Roissy, which did such activities as fire acts and the merchandising of products that were connected with domination bondage and sadomasochism. It was also his acknowledgement that he performed in fetish and hedonist clubs but contended that such would not bring his employers to disrepute. The Assistant Chief of Probation considered this activity as unsuitable for a probation officer. The Human Resource Officer had no issue with the fact that the employee had another paid job outside his normal employment but whether or not, given that he was a public servant and a member of the criminal justices system, working with sexual offenders and several other groups that were considered vulnerable, the employees activities during his private time were commensurate with the role that he was playing in the society and if the public could trust him. This is despite the fact that they had not been offended by his performance but rather by the fact that he was expressing himself in a way that would otherwise be considered offensive by the victims of the people he was dealing with. The employee was dismissed and his dismissal was upheld when he appealed. It was the view of both disciplinary panels that the probation service had the responsibility to the public to show them that it had integrity and so did its officers and that if the public knew the activities that this particular employee was engaged in, it could ruin the reputation of the service. This is based on the fact that probation in itself was aimed at reforming the people in the society who were now considered a danger to other members of the society because of their acts. In coming to this conclusion, the panels considered the Human Rights Act of 1998 and that Article 8, which deals with the right to respect for private and family life, and Article 10 which deals with the right to freedom of expression; were not absolute provisions of the law but were qualified and as a result, due regard had to be taken to protect the health or morals and the rights and freedoms of other people. It was thus the contention of the employment tribunal that such activities that the employee was associated with were not a good expression of a probation officer dealing with sexual offenders when it comes to the issue of morals and health. According to the employment tribunal, the reason for the dismissal was not misconduct but other justifiable reasons. It justified their action with the provisions of Section 98(1) of the Employment Rights Act of 1996. It also held that the dismissal by the panel was a view that any reasonable employer would hold and the steps taken would have been the same. In accepting that the employee had a general concern for the reputation of his employers, there was an equally stronger concern as to the effect of the relevant activities upon the victims of the crimes, especially those victims of the sexual offenders who were already receiving help from the probation service. The Employment Appeal Tribunal on its part found no error of law in the approach that the tribunal took. It however reconsidered the interplay between the laws of unfair dismissal and the European Convention of Human Rights incorporated in the United Kingdom by the Human Rights Act of 1998. It thus found out that this did in fact make sense for the tribunal to first consider the fairness of the dismissal under Section 98 of the Employment Rights Act of 1996 since this would have ultimately been the borne of contention. X v Y The central point of this case involved the impact of Sections 3, which deals with the interpretation of legislations and 6, which deals with public authorities, of the Human Rights Act of 1998. It was a case to determine an application of unfair dismissal that had been brought against a private sector employer under Part X of the Employment Rights Act of 1996 (Tugendhat,& Christie, 27). Even though there were several aspects of the case that including sexual orientation, the main focus was on the issue of unfair dismissal by his employers. The employee had also started an internal appeal process that he later abandoned for the employment tribunal. While both parties agreed that the case raised a generally significant point by the contention that the law of unfair dismissal in the Employment Rights Act had been altered by the Human Rights Act, the applicant contended that his dismissal involved the violation of the right to respect for private life as guaranteed under Article 8 of the European Convention of Human Rights. As a result, it was his contention that his dismissal was accordingly unfair. The law stipulated that in interpreting national legislation, the authority was to consider the effects of such legislation in relations to the provisions of the Human Rights Act and those of the European Convention of Human Rights. The facts of this case were as follows. In 1998, the applicant started work as a part-time development officer for the employer, a charity that was concerned with voluntary work. Its aim was to promote the personal development of young offenders and those who were at the risk of offending within the age group of 16 years up to 25 years. Its action plan involved working on building the confidence and raising the self-esteem of the individuals by setting programmes of leisure activities. This was an age group that was generally considered vulnerable by the other members of the society and dealing with them would therefore be affected by the related perceptions of integrity. The employee was highly regarded by both clients and colleagues and was appointed to the full-time post of development officer in June of 2000 and was funded by the local probation service. This was considered a position of responsibility and trust. In addition to the local probation service, he worked with the local secondary schools, the sea cadet services and in industry. He had also had a stint as an officer working with the sea cadet service previously. Until then, all these institutions had regarded him highly, both as a colleague and as an officer by his clients. The employers later discovered in July of 2001 that in January of the same year, the applicant had been arrested and taken to the station in connection with an incident that had occurred when he was off duty and away from his place of work. Although he was not charged, he received caution, which he accepted and executed, for committing a sex offence with another man in a lavatory of a transport cafe in which the public was and permitted to have access. They were arrested by a police officer on notification of the infraction by the citizens In signing the caution that he was given at the police station, the applicant had acknowledged that he had committed a criminal offence that was contrary to the provisions of Section 13 of the Sexual Offences Act of 1956. Under Section 1 (2) (b) of the Sexual Offences Act of 1967, the act of the applicant was not treated as done privately, within the meaning of the decriminalization provisions of the Act. He kept quiet about the caution and made deliberate decision not to disclose the offence to his employer. The caution ultimately came to light and the employer suspended him and later summarily dismissed him after a disciplinary hearing was held on charges of gross misconduct. Under the conditions of employment, an act of gross misconduct was among the acts which made the employee unsuitable for employment. The applicant proceeded to the employment tribunal contending that he was unfairly dismissed and in a manner that was inconsistent with the respect of private life under the provisions of Article 8 of the European Convention on Human Rights and that his employer was in contravention of the prohibitions of discrimination under the provisions of Article 14 of the same Convention because of his sexual orientation. The employment tribunal found that the disciplinary hearing was fairly handled. It also found that the dismissal was for a conduct whose reasoning was under Section 98 (2) (b) of the Employment Rights Act. In coming to this conclusion, the tribunal observed that it was reasonable and fair for the employer to treat the applicants act as a sufficient reason for dismissing him. The justification was that the applicant had committed a criminal offence that was not trivial in nature; that their was no wisdom in the way he acted and that he had shown inappropriately that he lacked the necessary self-control and lack of judgement. This would therefore had a bearing on his employment, especially with youngsters who, given their condition, would be considered a vulnerable group. Given the sector that he was employed therefore, the fact that he did not inform his employer of the offence he undermined the trust that the employer had bestowed upon him and the confidence of his responsibilities. It was in evidence later that he had appreciated the fact that he ought to have informed his employer although he later also contended that it was not a fact in issue as to the course of his employment. He therefore never informed even his family members and it was a police officer who discovered it. As to the fairness of the dismissal, the tribunal had held that it was with the range of reasonable responses that an employer could use to deal with matters relating to gross misconduct. Applying the sanction of dismissal was therefore not unfair according to the test that was laid down and affirmed in the case Foley v Post Office (2000) ICR 1283. According to this test, the employer must show that he believed that there had been a misconduct by the employee; that there were reasonable grounds to hold that belief; that he had carried out as much investigation as he could reasonably carry into the matter and that the decisions to dismiss the employee was within the range of possible solutions to the investigation and confirmation of the conduct. His application was therefore dismissed. Right to Respect of Private Life The decision in the above cases should not be taken by employers to confer on tem a right to dismiss employees simply because they do not approve their activities outside the workplace. The context is very crucial and in the case of Pay v Lancashire Probation Service, it was the potential impact on the probation service of those specific activities that the employee conducted, given his particular job description and role, that not only justified the fact that he was dismissed fairly by reason that the two activities, his employment roles, and his private activities but also allowed the limitation to his freedom of expression (Ehlers & Becker, 68). Similarly on the decision of X v Y, while there are no stand alone heading of claim that can be brought under the Human Rights Act there must be a correlation for such conduct to reasonably appear as private. The problem with the applicant’s case in this case was the fact that it was a transitory sexual encounter between two strangers in a lavatory that was not covered within the definitions of private life. This decision seems more focused on the fact that the applicant committed an act that was considered gross but not the fact that he committed it outside his course of employment. The focus on the above two cases is centrally placed at the rights of an individual. In both cases, the employees were contending the fact that the employment tribunals had misdirected themselves in law in concluding that the Human Rights Act was irrelevant in determining the issues before it. It is clear that in both cases, the tribunal had not appreciated the fact that the dismissals may have been in contravention of the right to respect of private life under Article 8 (1) or the question of whether such interference as a dismissal would be justified under the provisions of Article 8 (2). Despite these cases, private life should mean what it says. It should not be open to any body or institution to find that any action taken by an employer against an employee, for any activity that they do outside their employment, is fair and reasonable under any legislation or statute, without first determining whether or not it is engaged in universal right of respect to private life. If so, it should also be considered whether such interference was justified. It would be wrong to consider an action by an employer as against his or her employee to be reasonable and fair, despite all the justifications that they have, without firs considering if it is an interference with their right to a private life. This is especially so for activities that are otherwise not done as part of the employment process, be it public duty or private sector. This test of the right to private life and family, for instance in the above instances should first consider if the dismissal was within the justifications of Article 8(2) or under the provisions of Article 14 of the European Convention of Human Rights. This is because for any action taken by an employer against his or her employees for activities done during their private time should be legitimately proportional to the justifications that would allow the interference with their right to a private life. In the above cases, the interference was the dismissal of the applicants. This is because everyone has the right to respect for his private and family life, his home or his correspondence. Therefore, there should be no interference by a public or private authority, with the exercise of this right except where the interference is in accordance with the law and is necessary in a democratic society in the interests of the country’s economy, national security, public safety, the protection of health or moral or for the protection of the rights and freedoms of the other members of the society. All legislations that provide for the same interference therefore should conform to the spirit of human rights. Moreover, a person’s right to the respect of their private life may extend to the relationships that they have with others or the activities that they do with them. In the case of X v Y, for example, the principle that confine privacy to the home could have been lifted considering Hale, LJ’s opinion in the case of Pearce v Governing Body of Mayfield Secondary School (2002) ICR 198. He stated (205), that sexual behaviour is undoubtedly an aspect of private life, indeed, it is the most intimate and important aspect of private life. Any interference by the state could only be considered under the provisions of Article 8 (2) of the European Convention of Human Rights (In places where there is jurisdiction). He continued to say that even without a positive obligation; the respect goes beyond what would be confined to the privacy of the home. This therefore means that a person may perform an act that may seem public, yet before the law it may be considered private. Consequently, where an employer relies on act that falls within this category to dismiss an employee, it is paramount that the court considers whether firstly, the act was a private act, secondly, an act in the course of employment and finally whether it was an act that the employee did during his private time. It should be understood that private life is not limited to the considerations of the above cases. It is a broad term that cannot be defined exhaustively. It may include such aspects as identification in terms of gender, the name of the individual or their sexual orientation and sexual life. The rights that protect the respect to private life also protect the right to a person’s identity and personal development in addition to the right to establish and develop relationships with other human beings and the outside world, be it in legitimate trade or personal relationships that are sexual in nature or religious associations that ascribe to different philosophies, some of which may be incompatible with those of the employer. This therefore mean, defining private in a confined manner may cause interference in person’s life illegitimately. This is because there is always a zone in the interaction and people’s activity with others even where it may be considered public, which may still fall under the category of being within the scopes of “private life.” Because there are instances when people will intentionally or knowingly involve themselves in activities which are or may be recorded or reported as being in a public manner, what is reasonably considered as private within the context of employment is therefore a very significant factor. Therefore, regardless of the positions that the tribunals held in the cases that have been detailed above. It should be understood that it is essential to protect the individual citizen from an arbitrary interference by anybody on their right to have a respected private life. Dismissing or otherwise punishing or limiting the activities of an individual who is employed or grounds that his private life is interfering with employment therefore would amount to the breach of this right. While it is true that there are times the State may be obligated to positively interfere with such rights, it can only do so while affording it the respect that is required. Private Should Remain Private Whereas the decision in X v Y and that of Pay V Lancashire Probation Service are authoritative gist of the argument to the effect that acts done by an employee when off duty or when away from work location may be relied upon by an employer as a basis of dismissal, the reasoning and holding in these cases are inconsistent with some court decisions and opinions of some renowned scholars. Lord Atkins for instance in Bell v Lever Bros [1932] AC161, HL pointed out, in a dictum, that an employee is never under a duty of disclosing his own misconduct relating to work or at work, as to do so is an affront to his privacy. This is inconsistent with the view raised in X v Y to the effect that X should have disclosed to the employer his previous misconduct. Mantouvalou, in reviewing the X v Y and Pay V Lancashire Probation Service admits that conducts done when an employee is off duty may be a ground of employment contract termination , but contends that this should only be the arise “only if there is a clear and present impact or a high likelihood of such impact on business interests; a speculative and marginal danger does not suffice” (912). He argues that despite recognition by Brook LJ in X and Y that serious human rights issues ,especially in relation to privacy, were pertinent to the case, the court failed to consider them owing to the court’s misconception of privacy. In Mantouvalou’s analysis, the criteria for determining privacy of an act ought not to be restricted to location; rather, it ought to focus more on the nature of the act. As such, the court, in X v Y, should have taken cognizance of the fact that sexual orientation (which is considered the most intimate aspect of humanity) of the employee was at a stake (920). Therefore, article 8 should have applied. Had the court taken note of this, the holding would have been fundamentally different, if not reversed. Mantouvalou’as contension is consistent with a number of ECtHR’s decisions. For instance, in Peck v UK, ECtHR found that the UK authorities had breached the applicant’s right to privacy by providing the media Peck’s CCTV footage showing his attempt to commit suicide, notwithstanding the fact that the footage was taken in public. In view that the applicant could not foresee that his footage would be publicly transmitted, the government’s act infringed article 8 (62). The court rejected the defense argument that the footage was taken in a public place hence did not constitute breach of privacy. Similarly in Von Hannover v Germany, the ECtHR rejected the view that privacy was to be interpreted to mean seclusion, a conception that had dominated German’s Jurisprudence. The court in this case emphatically pointed out that “the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance” (75). It should be noted that the Court of Appeal in X vs. Y took note of the matters relating to unfair dismissal should be interpreted in consistent with the rights under the convention. To this extent, in consideration of the arguments raised above, an employer will be expected to respect the right to privacy which is expressly recognized by article 8 of the convention. In this regard, Collins has found an error in the ruling in X vs. Y. He suggests that a more prudent approach would be that “when interference with Convention rights is in issue, a decent employer should not merely balance its interests against those of the employee, but rather should actively take steps to avoid the interference if at all possible” (643). This argument emphasizes the ideas that an employer should as much as possible refrain from an employees’ private life. It echoes Mantouvalou’s argument to the effect that marginal and indirect effects of an employee’s private misconduct ought not to be a ground of dismissal, as it unduly infringes on private life. While the issue of private life being interfered with may arise where an employee does not report to work because of private reasons, it ought not to arise where such private reasons were outside the normal scope of the employment, or during the employees private time. As mentioned above, the definition of private life is wide and broad. In the case of Niemietz v Germany 13710 (1992) ECHR80, the European Court of Human Rights observed that it would be too restrictive to attempt and exhaustive definition. It is for this reason that the respect for the right to private life must also comprise, to a certain degree, the right to a broad range of legitimate activities. These however exclude the activities of a professional or those that are of a business nature. This is because, in the course of doing their work, the majority of people will be confined to the activities defined in their scope of work. In such situations, they are significantly in the best position to interact with the outside world and reflect the image of their employers. In such instances therefore, their acts would fall within the scope of the conditions of employment. It is in the same spirit of development in the course of employment and maintains the terms of the employers that the law recognizes that a person has the right to private life, outside his normal course of earning a living as an employee. It is recognition of the fact that as an individual, a person has the right to personally develop and to also develop his relationships with other. This encapsulates sexual orientation, mental and physical health and different forms of expression. All these matters in one way or the other have a context in issues of industrial relations. A significant example would be in the case of Smith and Grady v United Kingdom (1999) 33985/96 and 33986/96. Under the provisions of Section 146 (4) of the United Kingdom’s Sexual Offences Act of 1967, it was permissible to dismiss any member of the Armed Forces if they were known to be gay. In addition, the Armed Forces in the Policies and Guidelines on Homosexuality state that gays would be dismissed on the grounds of their sexual orientation, if it turned out not to be conducive to creating an operational military effectiveness. It was based on these provisions, that Miss Smith a lesbian and Mr. Grady, a homosexual were dismissed from the Air Force. Given that they could not claim unfair dismissal as members of the Armed Forces, they sought a judicial review of the decision. Their claims were rejected in both the High Court and the Court of Appeal and so they turned to the Strasbourg Court for relief. Their relief was granted by this court (Woelki & Fuchs, 182). In this case, while there was not dispute as to the fact that their sexual orientation was part of their private life and the policies were considered to be for the purpose of achieving military effectiveness, it was considered to be a vague expression of the conditions for employment or their effectiveness at what they had been trained to do. The implications of the private life of an employee are potentially far ranging. So are the circumstances under which the respect of such right may be interfered with. This interference is not only limited to unfair or summary dismissals for activities done but may also include the coercion to engage in activities at the place of employment that one is not comfortable with. For example, the employer may require that the employees attend a prayer meeting every day in the mooring before the day’s activities start. It would be infringing on the private life on the employee based on the fact that he may not be subscribing to similar beliefs or philosophies. Conclusion The law of unfair dismissal is a part of private and not public law. So are many regulations that government employment, in both public and private sector. While there are regulations that may be in the interest of the public, private remains exactly that, private. There are many principles of public law that have been imported into the regulations that govern the relationship between an employee and his employer because of the rules of natural justice. This is mostly because these two share several common and essential features especially in the review of decisions and the manner in which such decisions are made and reached. There is therefore a greater degree of scrutiny that will be required when addressing issues that interfere with the employee’s employment because of activities that they did in their private life and outside the normal course of employment. It is therefore mandatory that even when applying this higher degree of scrutiny, more weight should be attached to the fact that it is the interest of the employee that should be balanced and not that of the employer. This is because it is generally assumed that the employee is the weaker party in such a relationship. As a consequence, using activities that they have done in private as the grounds of terminating their employment would be in contravention of the spirit of enforcing the rights of every individual. Given the inevitable compromise and balance between work life and private life and the commitments involved in both particularly in matters relation to family issues, it is necessary to strike a balance between what is significant to the reputation of the employers or the duties of an employee and what is not. The reality of the circumstance that surrounds every case has to be considered. What should also be reviewed are the terms and conditions of employment, be they express or implied. This is because letting employers determine what affects their reputation or firm would amount to giving them permission to arbitrarily termination employment contracts on the basis of factors which they consider to be in contravention of the terms of their employment while it is possible they are just negatively stereotyped towards certain activities or beliefs of the employee. Works Cited Boele-Woelki, Katharina & Fuchs, Angelika, Legal Recognition of Same-Sex Couples in Europe, Oxford: Hart Publishing Collins, Hugh. The Protection of Civil Liberties in the Workplace. The Modern Law Review. 69(4) (2006) 619-643. EAT, Pay v Lancashire Police Service, EAT/1224/02/LA, 29 October, 2003 Ehlers, Dirk & Becker, Ulrich, European Fundamental Rights and Freedoms, Berlin: Walter de Gruyter, 2007 Mantouvalou, Virginia. “Human Rights and Unfair Dismissal: Private Acts in Public Spaces.” The Modern Law Review ,71(6) (2008) 912-939. Peck v UK. App No 44647/98 Judgment of 28 January 2003 Perritt, Henry, Employee Dismissal: Law and Practice, New York: Aspen Publishers Online, 1997 Swift, Jonathan & Chapman, Chris, Employment Court Practice, London: Sweet & Maxwell, 2007 Von Hannover v Germany .App No 59320/00 Judgment of 24 June 2004. 33 Read More