MR L PAY v LANCASHIRE PROBATION SERVICE [2003] UKEAT 1224_02_2910

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 1224_02_2910

Case No Appeal No. EAT/1224/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR L PAYAPPELLANT

LANCASHIRE PROBATION SERVICERESPONDENT

Before

His Honour Judge J McMullen

Date 29 October 2003

[1]APPEARANCES For the Appellant MR ALAN MASTERS (of Counsel) Instructed By: Moseley Chapman & Skemp Solicitors 4 Trinity Place Midland Drive Sutton Coldfield West Midlands B72 1TX For the Respondent MR MICHAEL HUMPHREYS (of Counsel) Instructed By: Lancashire County Council PO Box 78 County Hall Preston PR1 8XJ HIS HONOUR JUDGE J McMULLEN QC: This case concerns the correct approach to the test of unfair dismissal in the context of Convention Rights to private life and to freedom of expression. We will refer to the parties as Applicant and Respondent. Introduction

[2]It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting at Manchester over seven days between 21 January and 15 July 2002, registered with Extended Reasons on 8 August 2002, Chairman Mr P A Verdin. The parties were represented there and here by Mr Alan Masters and Mr Michael Humphries, respectively, of Counsel. The Applicant claimed unfair dismissal and violation of his Convention Rights guaranteed by the Human Rights Act 1998 . The Respondent contended that the Applicant was dismissed fairly after full appreciation of his Convention Rights by its relevant officers. The Issue

[3]The essential issues were defined by the Employment Tribunal in paragraph 15 of its reasons:

"15 The issues fall under two headings. Firstly whether the dismissal was fair (ignoring questions raised under the Human Rights Act) and secondly the issues raised under the Human Rights Act. It is clear that the Tribunal cannot actually divorce the one from the other since Human Rights issues if raised have an effect upon the fairness or otherwise of the dismissal. Nevertheless, because it is essential that the Tribunal addresses its mind to the Human Rights issues as well as to what might be termed the normal issues relating to an unfair dismissal the Tribunal has considered the issues separately."

That statement of issues was agreed by Counsel and both submitted lengthy written submissions conforming to the sequence of examination described above.

[4]The Tribunal decided that the Applicant was not dismissed unfairly. It held that his right to private life guaranteed by

Article 8 of the European Convention on Human Rights

(below) was not engaged, and his right to freedom of expression under Article 10, although engaged, was not infringed. The Applicant appeals against that decision. Directions sending this appeal to a Preliminary Hearing were given by HH Judge Altman on 11 November 2002. Further directions were given by Rimer J and Members at a Preliminary Hearing on 24 February 2003 which was adjourned and came on before Mr Commissioner Howell QC and Members on 1 April 2003. At that hearing very considerable reshaping of what became the amended Notice of Appeal was directed, other parts of the Notice of Appeal were dismissed or not pursued. These included challenges in what might be regarded as straightforward unfair dismissal law to the procedure adopted by the Respondent and to the substantive decisions made by it, and challenges to the procedure adopted by the Employment Tribunal. The dismissal of those matters has not been appealed.

[5]Something must be said about the delays in this case. The Applicant's cause of action arose when he was dismissed on 9 January 2001. He presented an Originating Application on 12 January 2001 and so a period of 19 months elapsed before the Tribunal gave its decision. The Notice of Appeal in its original form was lodged on 18 September 2002 and we are giving judgment over a year later. Without a convincing explanation, these delays would be unacceptable. However, neither party makes any criticism of the other, nor is there any criticism by them of the Employment Tribunal or of the EAT. In those circumstances it is inappropriate for us to add anything. The Legislation

[6]The relevant provisions of the legislation are as follow. Subject to exceptions not relevant here the right to claim unfair dismissal is provided by Section 94 of the Employment Rights Act 1996:

"(1) An employee has the right not to be unfairly dismissed by his employer."

By Section 98(1) an employer must show a reason for dismissal falling within a category set out in Section 98(2) which includes "conduct" or "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held." Section 98(4) deals with fairness:

"(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."

[7]Until its repeal on 1 April 2001 the Probation Service Act 1993 regulated the duties and functions of Probation Officers. They were employed by Probation Committees set up in respect of probation areas and these Committees were given general functions and duties in relation to Probation Officers by Section 4. Probation Officers themselves had the following duties:

"14 It is the duty of probation officers – (a) to supervise the probationers and other persons placed under their supervision and to advise, assist and befriend them; (b) with a view to assisting the court in determining the most suitable method of dealing with a person's case, to enquire (in accordance with any direction of the Court) into, and make reports on, his circumstances or home surrounding; (c) to advise, assist and befriend, in such cases and in such manner as may be prescribed, persons who have been released from custody; and (d) to perform such other duties as may be prescribed."

The conditions of service were, by Section 15, such as might be prescribed from time to time by the Secretary of State.

[8]A Probation Committee was a body corporate and consists of Magistrates from the relevant area, Judges of the Crown Court nominated by the Lord Chancellor, and such other persons who may be co-opted onto the Committee. See Schedule 1, paragraphs 1, 3, 6.

[9]By Section 4 of the 1993 Act the Probation Committee was under a duty to appoint Probation Officers and to provide for the efficient carrying out of the work of them. The Committee was subject to review by a responsible authority, usually a local authority and ultimately to the Secretary of State.

[10]The Criminal Justice and Court Services Act 2000 abolished the previous regime and replaced it with the National Probation Service for England and Wales with effect from 1 April 2001. Broadly speaking the staff including Probation Officers (now renamed Officers of Local Probation Boards but still known as Probation Officers) transferred by operation of law from the service of Probation Committees. In performing their statutory functions, Boards and their Officers are required to have regard to the aims set out in Section 2(2). These are:(a) The protection of the public

(b) The reduction of re-offending

(d) Ensuring offenders' awareness of the effects of crime on the victims of crime and the public

(e) The rehabilitation of offenders in relation to victims of sexual and violent offences. Section 69 gives life to the aim in Section 2(2)(d) above requiring Probations Officers to take account of the wishes of victims of such crimes.

[11]The European Convention on Human Rights forms in relevant part Schedule 1 to the Human Rights Act 1998 . Article 8 deals with private and family life and provides as follows:

" Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Article 10 deals with "Freedom of expression" and provides as follows:

" Article 10 Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

[12]By Section 1 of the Human Rights Act these are described as the Convention Rights. In determining a question in connection with a Convention Right a Court of Tribunal must take account of the instruments and jurisprudence of the Strasbourg authorities: Section 2. Further, Section 3 imposes the interpretative obligation:

"3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and give in effect in a way which is compatible with the Convention rights."

Section 6 makes it unlawful for a public authority to act in a way which is incompatible with a Convention Right.

[13]The Employment Tribunal addressed itself in sequence to the relevant provisions of the Employment Rights Act and the Human Rights Act. Neither it nor we were referred to the statutory framework for Probation Officers, but it seems uncontroversial. The Facts

[14]A summary of the Respondent's annual plan for 2000 to 2001 included the following aim:

"Lancashire Probation Service signs up to realise the Government's aim of a safe and tolerant society. We are committed to reducing crime and ensuring the public is protected. We want to help build confidence in the way the justice system operates. Working with our partner organisations in the public, voluntary and private sectors, we aim to produce safer communities in which people will be less vulnerable to crime and less fearful of it …."

The modern probation service is a law enforcement agency at the heart of the criminal justice system. It aims to see that offenders receive proper punishment for their offending by the way they are supervised in the community. It works for the effective rehabilitation so they are less likely to offend in the future. Its objectives include Home Office priorities which were to challenge offenders in their behaviour, to enforce community sentences rigorously and to reduce the risk of harm from dangerous offenders. Its responsibilities include the delivery of effective programmes for supervising offenders safely in the community and upholding the interests of victims of crime. The Tribunal accepted the assertion by Mr John Crawforth, the Chief Probation Officer of the Respondent when he said:

"If the Probation Service did not take steps to safeguard its integrity and to maintain public confidence in the conduct of its staff … I believe it would be failing in its duty as a law enforcement agency and as a responsible employer …"

The facts

[15]The Respondent had in place procedures for investigating disciplinary allegations, for the conduct of hearings and for the conduct of appeals. It had a Human Resources Department whose Principal Officer was Mrs Wyham, Assistant Chief Probation Officer. Serious matters were dealt with by a panel of the Personnel Hearings Sub-Committee, which consisted of Magistrates, and for an appeal to be heard by another panel of different Magistrates pursuant to recently implemented procedures advised by ACAS. A decision, including a decision to dismiss, is not put into effect until the exhaustion of the appeal procedure at the second panel. It is accepted by the Respondent that the Lancashire Probation Committee, its panels and its senior officers involved in this case are public authorities within the meaning of Section 6 of the Human Rights Act. Although not argued before us, we see no reason why the Applicant as a Probation Officer is not also so bound.

[16]He was born in 1951. The Tribunal found as follows:

"4. The applicant joined Lancashire Probation Service in 1983. He very quickly became involved in the treatment of sex offenders and together with a colleague founded the Sexual Offenders Initiative which was a programme which ran successfully for a period of 4 years. He continued his interest in this type of work which was always central to his activities with the Probation Service. He was well regarded both by his employers and by the courts for the work which he did with sex offenders and this was readily acknowledged by various witnesses of the respondent. 5. Throughout his career the applicant had a hobby of a fire act which he described as circus related. In 1983 his employers were made aware of this interest of his and he performed such an act on a Fleetwood Probation Office Open Day. This act was not in any way offensive."

[17]In October 1999 Probation Officers were asked to declare whether they were Masons and the Applicant said he was not but listed a number of organisations including the House of Roissy with which he was associated. Shortly thereafter this became Roissy Workshops Limited ("Roissy") of which the Applicant is a Director. On 25 July 2000 Lancashire Police received an anonymous fax giving information about Roissy, the Applicant's involvement in it and Roissy's connection to other organisations. These are broadly what are described by the Tribunal and by the Respondent as "the Applicant's activities". The Police conducted a short investigation, took no action but referred the fax to Ms Mallabone, an Assistant Chief Probation Officer. As a result, the Applicant was suspended from duty on 27 July 2000. He was interviewed by Ms Mallabone on 1 August 2000 with another director of Roissy. Ms Mallabone found that the Applicant was open about his activities. These included his performance of the fire act, the merchandising of products connected with bondage, domination and sado-masochism (BDSM) through the website of Roissy, and the links mutually available on Roissy's and other websites including in particular Birmingham Bizzare ("BB"). The Applicant accepted that he performed shows in hedonist and fetish clubs but asserted this would not bring the Respondent into disrepute. Ms Mallabone's view was that this material was on the internet and could show connections between the Applicant and the Respondent. It was an unsuitable activity for a Probation Officer.

[18]She referred the matter to Ms Wyham who on 19 September 2000 decided that the tendentious fax was not at issue nor was the fact that the Applicant had paid employment outside work. It was this:

"What is at issue is whether or not as a public servant, and as a member of a criminal justice organisation working with sex offenders and other vulnerable groups, Mr Pay's activities in his private life, as depicted on the Internet are commensurate with his role as a probation officer and the public trust in him."

[19]Ms Wyham paid attention to

Article 8 of ECHR

which had yet to be implemented on 2 October 2000. She noted that photographs were not available of the Applicant on the Roissy website but were available on BB website via links from Roissy and that these photographs were linked without the Applicant's knowledge. These photographs indicate the Applicant and another man engaged with instruments of fire in the presence of semi-naked women. Captions were put on the photographs consistent with their being part of BDSM. On the Roissy website itself there is advertised a night of rapture at Ceasar's adventure playground where a photograph features a naked man and two semi-naked women crouched over him. Ms Mallabone's view was that the activities were in the nature of soft pornography and were degrading to women. The Applicant did not agree. Ms Wyham on the other hand took the view that, if these activities were in the Applicant's private life, interference with his Convention Rights would be justified. She noted that the Applicant was engaged in his activities at various clubs including "Club Lash". She was concerned, amongst other things, about the effect of disclosure of the Applicant's relationship to Roissy on victims who looked to the Probation Service for help. She considered the information on the website could be "badly misinterpreted".

[20]The Personnel Hearings Sub-Committee which met on 19 October reported on 23 October 2000 and concluded that the Applicant should be dismissed on due notice. The panel considered Articles 8 and 10 of the ECHR which were by then in effect as part of the Human Rights Act. Of particular concern to that panel was the work done by the Applicant involving sex offenders.

[21]The Applicant appealed and on 9 January 2001 a full re-hearing occurred. As noted above, his suspension continued until the outcome of this hearing which was to dismiss him with notice. The proper focus of the Employment Tribunal's attention was therefore the decision of the Respondent as articulated at this meeting. This panel noted that there was little dispute about the facts and said this:

"The Panel regards the nature of the act shown in the photographs presented and Mr Pay's participation in those acts, and also the advertising material for Roissy Workshops Ltd, as incompatible with the role and responsibilities of a Probation Officer. The Panel further takes the view that involvement in such activities by Mr Pay is additionally inappropriate, having regard to his work with sex offenders. . .. The Panel shares the view of the previous Panel … that the Probation Service has a responsibility to the public to demonstrate the integrity of its officers, and that public knowledge of Mr Pay's activities would damage the reputation of the Service. The Panel does not accept that the decision to dismiss Mr Pay constitutes infringement of his rights within the Human Rights Act 1998. The Panel note that Articles 8 and 10 … are qualified rights, and that due regard must be had to the protection of health or morals, and the protection of the rights and freedom of others. The Panel has deliberated upon the argument put forward on Mr Pay's behalf that the Probation Service should have considered alternative employment for Mr Pay within the Service. The Panel, however, took the view that any such proposal was inappropriate, given its conclusion that the activities of Mr Pay had been found to be incompatible with the role of any Probation Officer."

The dismissal took effect that day, 9 January 2001 and presumably the Applicant received his full notice pay.

[22]The Tribunal found that those engaged in the investigation and disciplinary hearings had grave concerns that the Applicant's activities were incompatible with his role as a Probation Officer. Although the Respondent had advanced misconduct as the reason for dismissal the Tribunal held that it was some other substantial reason within Section 98(1) justifying the Applicant's dismissal. It then went to on to hold that dismissal by the Panel was a view which a reasonable employer could have taken. It found that the procedure adopted by the Respondent was not flawed. This aspect is no longer under challenge on appeal. The Tribunal's principal finding is as follows:

"20. ... The Tribunal heard from various witnesses of their concern as to the consequences if the applicant's activities came more fully into the knowledge of the general public. There was a concern for the general reputation of the Probation Service but there was equally a concern as to the effect of these activities upon victims of crime and in particular victims of sex crime as well as on offenders who were receiving the help of the Probation Service. It was well put by one witness who in answer to a suggestion that the applicant's activities were clearly theatre said that there was a concern that victims in particular would be unable to distinguish between fact and theatre although the Tribunal do not accept that if the acts were themselves pure theatre no reasonable employer of the nature of the Lancashire Probation Service could then conclude that the acts were acceptable."

It therefore held that the dismissal fell within the range of responses of a reasonable employer to the findings of the panel.

[23]The Tribunal then, pursuant to its depiction of the issues, went on to consider the impact of the ECHR. It found in relation to Article 10, freedom of expression, as follows:

"The Tribunal accept that for a probation officer there must be some limitation on that person's 'freedom of expression'. … the Tribunal accept that the activities of the applicant (taken in the round) were such as to have the possibility of damaging the Probation Service and its reputation and that it is reasonable that such activities should be curbed so far as the applicant's freedom of expression is concerned."

It adopted Mr Crawforth's statement (paragraph 14 above) and concluded that he had reasonably summarised the justification for curbs on the activities undertaken by the Applicant.

[24]As to Article 8, it concluded that the activities of the Applicant were in the public domain and could not be termed part of his private life. A Probation Officer like other professional people did not cease to be a Probation Officer outside hours of work. Such persons had a reputation to maintain. Having considered Niemietz v Germany 16 EHRR 97 (below) it held that the right in Article 8 was not engaged. In summary the Tribunal held that it had balanced the competing rights of the parties and there was no infringement of either Article.

[25]The Tribunal noted the Applicant's claim for alternative employment made to the appeal panel but accepted the Respondent's case that such was inappropriate. Submissions

[26]On behalf of the Applicant no application was made to us to introduce a skeleton argument, but reliance was placed on the amended Notice of Appeal and its cross references to the very substantial document described as a skeleton argument before the Employment Tribunal. It is contended that the Employment Tribunal applied the wrong test of unfair dismissal. Whilst such an approach to a case of misconduct would be governed by BHS v Burchell

[1980] ICR 303

, that was the wrong test when Convention Rights were engaged. As Mr Masters put it:

"It was not enough to judge the action of the employer simply by reference to what a reasonable employer would do in the circumstances without bringing into account the expectation that the reasonable employer would respect the fundamental rights of the individual and act proportionately to those rights."

[27]The Applicant had rights under Articles 8 and 10 and the Tribunal wrongly held that there was no interference with either. In any event, the response of the Respondent was disproportionate, even if its case were accepted, for a more proportionate response might have been obtained by severance of the Applicant's links with Roissy, or with BB, or by his deployment to alternative duties. The judgment of the European Court of Human Rights in Vogt v Germany

[1995] 21 EHRR 205

(below) should be followed to require the adjustment of the statutory test in section 98(4) of the Employment Rights Act so as to protect a public servant from dismissal by reason of his or her activity outside work. Thus it was contended that the Tribunal failed to apply the correct test of proportionality. It was conceded by Mr Masters that if a Tribunal had got the correct test, its determination of the balance between the competing interests was one of judgment on the facts. That of course would be relevant to the jurisdiction of the EAT which under Section 21 of the Employment Tribunals Act 1996 is restricted to questions of law.

[28]On behalf of the Respondent, in a submission which reflected the clearly held views and clash of cultures which had been depicted before the Employment Tribunal by both parties, Mr Humphries contended that it was simply unacceptable for a probation officer engaged in the supervision of sex offenders, with a duty to the victims of such offences, to be engaged in BDSM pursuits in a public way. Article 8 was not engaged for the reasons given by the Tribunal, although it appeared that at the first panel. Article 8 appeared to have been accepted to be engaged. Article 10 was engaged, but there was no unjustified interference with the freedom of expression of the Applicant. Dismissal was a proportionate response given the indication that the Applicant would not have disengaged from Roissy. The equipment for sale and for hire included a dungeon which is, of course, a prison cell. The Applicant was a Probation Officer and his activities were incompatible and so no alternative deployment away from either offenders or sex offenders was available. Reliance was placed on Niemietz (above) and the judgment in XvY (

EAT/0765/02

) Judge Peter Clark and Members 11 June 2003, so as to indicate that the Applicant by his conduct in the public arena was not entitled to rely on Article 8. Mr Humphries accepted that a public authority would not act reasonably under Section 98(4) if it violated an employee's Convention Rights. This case raised an acute issue of Human Rights but the conclusion of the Tribunal was correct.

[29]Alternatively it was argued by Mr Masters that there was a connection between the Applicant's Convention Rights under Articles 10 and 8. It was submitted by Mr Humphries that this matter had not been contended below and was not part of the appeal. We agree. But if we are wrong it seems to us that it adds nothing to the argument and in any event each Article was argued separately and Article 10 provides the protection for the expression of ideas to others in a way not protected by Article 8. Consideration and conclusions

[30]In their submissions, Counsel referred to only three authorities: XvY , Niemietz , and Vogt (in the European Commission of Human Rights: we prefer the judgment of the Court and refer to it). Nevertheless in their submissions on XvY reference was made to the authorities cited by the EAT in that case and so will we. Reference is also made by the Employment Tribunal to Rommelfanger v Germany , a decision of the Commission on admissibility made on 6 September 1989 of which we have obtained a transcript. The Tribunal was right to observe that at the time of its decision there were very few authoritive decisions relevant to the facts of the case.

[31]It should be borne in mind that the Applicant's claim was not made under the Human Rights Act, Sections 6 and 7 alleging a direct violation of his Convention Rights by a public authority. Instead, the interpretive obligation set out in Sections 2 and 3 are relied on for the approach of the Employment Tribunal to Section 98(4) of the Employment Rights Act. For that reason alone, the Tribunal was correct to begin its examination of the complaint by considering Section 98. That is, after all, how the issues had been put before it by Counsel. It made sense, also, because the case could have been won by consideration of Section 98 alone. For example, an employer who fails to prove a reason for dismissal falling within Section 98(1) or (2) is taken to have dismissed the employee unfairly, without the necessity for consideration of Section 98(4). That might have happened in this case, for the Respondent advanced misconduct as the reason but having regard to that reason the Tribunal found the reason was some other substantial reason within Section 98(1). It would also have been possible to make a finding on unfair dismissal, as indeed the Tribunal did, in its simple sense and to consider the aspects of fairness in Section 98(4). So the Tribunal was able to hold that the Respondent had not acted unfairly in the procedure it adopted for investigating and hearing the complaint against the Applicant. These are components of most decisions on reasonableness and fairness and they arise because of the interpretation given in cases such as Polkey vAE Dayton Services Ltd

[1988] ICR 412

HL and BHS v Burchell (above). The powerful submissions about the unfairness of the Respondent's procedure in this case could have resulted in a decision in favour of the Applicant without reference to his Convention Rights.

[32]Taking this analytic approach, the Tribunal first considered a simple case of unfair dismissal and found no unfairness. It then considered whether Convention Rights were engaged and, if so, violated. It is apt to describe its finding that there was no infringement as covering both its decision on Article 8 that there was no engagement and on Article 10 that although engaged there was no violation because of the justification given in Article 10(2). So, it could be said that there was no incompatibility between Section 98 and Convention Rights, using incompatibility in its non-technical sense. We can see nothing wrong in a Tribunal taking that analytic approach provided it ultimately injects consideration of Convention Rights into Section 98(4). It should do this by interpreting the word "reasonably or unreasonably" as including "having regard to the Applicant's Convention Rights". This will certainly apply where a public authority is involved.

[33]In respect of a private sector employer, Judge Peter Clark in the EAT in XvY put it as follows: "We see a potential line of enquiry by an Employment Tribunal leading to the question of how section 98 (4) should be interpreted, so far as possible in a way compatible with Convention Rights and whether the domestic interpretation of that statutory provision itself requires re-appraisal." [See paragraph 34]. It declined to do so in that case since it found there was no engagement of Article 8. In our case, we have understandably had no argument in respect of a private sector employment relationship. Confining ourselves, therefore, to a public authority we accept the position as put to us by Mr Humphries that a public authority employer will not act reasonably under Employment Rights Act 1996 section 98(4) if it violates its employee's Convention Rights.

[34]It follows that two public authority cases decided by the EAT now require re-examination. Each involved the cautioning of an employee for gross indecency and his subsequent dismissal. Each dismissal was held by the EAT on appeal to be fair: Notts County Council v Bowley

[1978] IRLR 252

; Wiseman v Salford City Council

[1981] IRLR 202

. In our view, in a case involving misconduct, the rules on unfair dismissal clarified by the Court of Appeal in Foley v Post Office

[2000] IRLR 827

need to be considered in the light of Convention Rights, applying the interpretative obligation explained by Lord Woolf CJ in Poplar Housing and Regeneration Community Association Ltd v Donohue

[2002] QB 48

, paragraph 75, to yield the interpretation we have advanced in paragraphs 32-33 above. As we have cited, Judge Peter Clark in XvY considered that in an appropriate case the judgment of the EAT in a third case, Saunders v Scottish National Camps

[1980] IRLR 174

, may require re-visiting. In that case a man was dismissed as the handyman at the Respondent's children's camp because he was homosexual. The dismissal was fair. It does not appear from the report that the Respondent would today be a public authority under the HRA and so as we explained it would not be right in our case to answer Judge Clark's call for its re-examination.

[35]It also follows, using Section 3 of the Human Rights Act, that "the circumstances" envisaged by Section 98(4) should include all those matters weighed in the balance in assessing whether there has been an interference with Convention Right under, for example, Article8.1 or Article 10.1, and then those matters advanced as justification pursuant to Articles

8.2 and 10.2. In the present case, they include at the minimum that the Respondent is engaged in the supervision of offenders and care for their victims, that the Applicant was an office holder with public duties specifically in relation to sex offenders, and that the Applicant was engaged as a company director in publicly advertised and available BDSM activities in his spare time. The circumstances must also include that the Applicant was not precluded by the express terms of his contract of employment or by statute from carrying out these activities. He did not commit an express breach of contract nor a breach of the criminal law. There is no evidence of any criticism of his work as a Probation Officer. Article 8

[36]This case is not about the Applicant's family life or about his private correspondence. The case was argued on the basis of "private life". The Tribunal found that Article 8 was not engaged because the Applicant's activities had been publicised on the website of Roissy of which he was a Director and that he was present in bars and clubs to which the public was admitted promoting the interests of Roissy in BDSM. Mr Masters did not raise sustained arguments about this provision but referred to Niemietz (above). We cannot see any help for him in that case which concerned the upholding of a German lawyer's Convention Rights when his office correspondence was raided by the police. The Court held (see paragraph 29) that in defining private life:

"... it would be too restrictive to limit the notion of an 'inner circle' in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings."

[37]Private life includes sexual activities: see Dudgeon v United Kingdom

[1981] 4 EHRR 149

where the Court held that a person's sexual life was "a most intimate aspect" of private life and such was upheld in Smith and Grady v United Kingdom

[2000] 29 EHRR 549

(service personnel dismissed for homosexual orientation). Yet in Laskey v United Kingdom

[1997] 24 EHRR 39

the Court found no violation where applicants were imprisoned as a result of sado-masochistic activities captured on video tape when police obtained possession of them. Although all male defendants in that case consented, they were charged with assault and wounding and sentenced to imprisonment. There was no unjustifiable interference. Similarly, in XvY itself the EAT came to the conclusion that the dismissal of the Applicant from a UK based charity, promoting personal development closely in conjunction with the Probation Service and aimed at young offenders, was fair following the employee's caution for the offence of gross indecency under the Sexual Offences Act 1967, Section 1(2)(b), ie engaging with a consensual man in sexual activity in a public lavatory, known colloquially as "cottaging", albeit such activity is lawful if committed in private.

[38]For the reasons given by the Tribunal and those expressed above we reject the contention that Article 8 was engaged and therefore see no error in the Tribunal's judgment to that effect. Article 10

[39]The Respondent accepts that Article 10 is engaged, that is, that the Applicant has a right to freedom of expression, to hold opinions and to impart information and ideas without interference by public authorities including itself. The issue in this case is whether that interference is justified by Article 10.2. As we will see, not all of the elements in Article 10.2 are in play and it is right to say that the principal focus is on whether the response of the Respondent in dismissing the Applicant was proportionate.

[40]The first element is whether the restriction is "prescribed by law". No arguments were addressed to us on this point. Presumably the law is Section 98(4), which permits a dismissal by an employer who behaves reasonably in the circumstances having regard to matters set out in Section 98(4), and to the common law developments. No argument was addressed to us that this law was not accessible or that the Applicant was not aware of the case law. Thus applying paragraphs 46 to 48 of the judgment of the Court in Vogt (above) no dispute arises between the parties. Further, it was not seriously contended on behalf of the Applicant that the interference was not in pursuit of a legitimate aim. That aim is as put in the letter of dismissal of 23 October 2000 as including "the Probation Service has a responsibility to the public to try and demonstrate the integrity of its officers and public knowledge of Mr Pay's activities would damage the reputation of the Service." That aim is acutely demonstrated by the Respondent's assertions about the Applicant's work with sex offenders and vulnerable people.

[41]The next element is whether the restriction was "necessary in a democratic society". The general principles were laid out in Vogt . Ms Vogt was dismissed as a teacher in a West Germany secondary school of French and German because of her membership of the German Communist Party ("DKP") in the 1970s and 1980s. It is described as the duty of political loyalty in the Lower Saxony Civil Service Act that persons should not be engaged in activities which are anti-constitutional. It was held that the activities of the DKP were anti-constitutional and her activities in it, including standing as a candidate, rendered her in breach of her duties as a public teacher. In holding that the judgment of the German Supreme Federal Court constituted a violation of Article 10 the Strasbourg Court set out the following principles. "52. The Court reiterates the basic principles laid down in its judgments concerning Article 10 (art. 10):(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions of its progress and each individual's self-fulfilment. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. Freedom of expression, as enshrined in Article 10 (art. 10) is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established (see the following judgments: Handyside v the United Kingdom , 7 December 1976, Series A no. 24, p. 23, para 49; Lingens v Austria , 8 July 1986, Series A no. 103, p. 26, para 41; and Jersild v Denmark , 23 September 1994, Series A no. 298, p. 26, para 37).

(ii) The adjective 'necessary', within the meaning of Article 1 para 2 (art. 10-2), implies the existence of a 'pressing social need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a 'restriction' is reconcilable with freedom of expression as protected by Article 10 (art. 10).

(iii) The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 (art. 10) the decisions they delivered pursuant to their power of appreciation. That does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was 'proportionate to the legitimate aim pursued' and whether the reasons adduced by the national authorities to justify it are 'relevant and sufficient' (see the Sunday Times v the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, p. 29, para 50). In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principled embodied in Article 10 (art. 10) and, moreover, that they based their decision on an acceptable assessment of the relevant facts (see the above-mentioned Jersild judgment, p. 26, para 31). 53. These principles apply also to civil servants. Although it is legitimate for a State to impose on civil servants, on account of the status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10 (art. 10) of the Convention. It therefore falls to the Court, having regard to the circumstances of each case, to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 para 2 (art. 10-2). In carrying out this review, the Court will bear in mind that whenever civil servants' rights to freedom of expression is in issue the 'duties and responsibilities" referred to in Article 10 para 2 (art. 10-2) assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the aim.

[42]The above quotation indicates the jurisdiction of the Strasbourg Court. As we have noted above, Mr Masters conceded that, if the Employment Tribunal got the test right, it would be a question of fact as to whether the balance between the competing interests in Article 10 had been correctly struck. Mr Humphries was not able to make representations on it and so we cannot give a definitive view. It seems to us at least arguable that when a claim is made of breach of Convention Rights, the Employment Tribunal is the vehicle in which the margin of appreciation given by the Convention is delivered. Its appreciation of what is proportionate within Article 10 is as much a matter of fact as it is of the application of law. We cannot decide this without argument but have been prepared in this case without objection to deal with the matter as a question of law. As the arguments developed it became clear that the central argument was whether there was a "pressing social need" for the Respondent to dismiss the Applicant; whether it was a proportionate response to the Applicant's activities for him to be dismissed.

[43]The Tribunal found the Applicant's attitude to his employer's concern was as follows:

"On each interview he sought to justify himself and was not prepared to accept that the view of his employers was a reasonably held view. It was only at a very late stage that he even suggested that he would be willing to take steps to have references to the Birmingham Bizzare website removed."

That finding reflects a dispute which arose at the Employment Tribunal. It was contended before us that the Respondent had not demonstrated that it was a proportionate response for it to dismiss the Applicant when it could have considered his severing his connections to Roissy, and opportunities for alternative work. Taking those in turn, the finding of the Tribunal is amply borne out by the evidence. We have considered the skeleton argument submitted to the Employment Tribunal and it appears from paragraphs 58 to 60 that there was consideration of the issue of severing "the links". This means both the electronic links between the Roissy and BB websites, and the direct connection between Roissy and the Applicant. The evidence of Ms Wyham was that the Applicant would not sever the latter. The Applicant's submission was as follows:

"61. (a) ... His argument always was ... that he had no control over the BB website and was not personally responsible for the Roissy website. (b) That his evidence is also that by the time of the hearing ... the photographs had been taken off the BB website and the link to that site had been removed from the Roissy website."

[44]It is plain that there had been discussion between the Respondent and the Applicant about his willingness to sever his connection with Roissy entirely; but that his case was that only certain electronic links between the Roissy and the BB websites had been severed. He was at no time willing to alter his connection with Roissy. That is consistent with the finding that he sought to justify his activities.

[45]As to the possibility of alternative deployment, the Respondent considered that his activities were inconsistent with any Probation Officer's duties. He was engaged as a Probation Officer with statutory duties to perform which were, as the Tribunal held, incompatible with his activities in Roissy. The Tribunal was called upon to judge matters as at the time of the Respondent's final action on 9 January 2001. Given the finding that the Applicant was unwilling to give up his connection with Roissy, and the Respondent's attitude to Roissy's activities, the possibility of alternative work would not logically arise.

[46]In our judgment the Employment Tribunal committed no error of law when it decided on the balance of competing interests required by its analysis of Article 10.2 that there was no violation of the Applicant's right to freedom of expression. The appeal is dismissed. Appeal

[47]Each party at the oral hearing asked us to consider in our reserved judgment, and without further application, leave to appeal to the Court of Appeal if our judgment were against them because this was said to be a novel point raised in acute circumstances, involving for the first time the construction of the Employment Rights Act and the ECHR within the context of a public authority. We refuse the Applicant leave because the appeal stands no reasonable prospect of success on the facts found. We have accepted his case that, in respect of a public authority, the Employment Rights Act 1996 section 98(4) should be interpreted to give effect to Convention Rights. He raised no argument on Article 8 that Niemietz v Germany 16 EHRR 97 was wrongly decided or that the Employment Tribunal had applied it incorrectly. Since, as we have held, the Employment Tribunal correctly weighed the balance required by Article 10.2, its conclusion (at least on the concession in this case) is one of fact.