Practice and Procedure


PUBLISHED November 17, 2003

The applicant's public sado-masochistic activities outside of work were incompatible with his position as a probation officer and were potentially damaging to the respondent probation service. Dismissal was a proportionate response and did not breach his rights under Arts.8 and 10 European Convention for Human Rights.Appeal from the decision of the Employment Tribunal ('the tribunal') dismissing the claim of the applicant ('P') for unfair dismissal and breach of his rights under Arts.8 and 10 European Convention on Human Rights. P was a well regarded member of the Lancashire Probation Service ('L'), mainly involved with sex offenders. Outside of work, P was a director of Roissy Workshops Ltd ('Roissy'). In 2000, the police received an anonymous fax regarding Roissy's activities and P's involvement. The police conducted an investigation but took no action apart from referring the fax to L. As a result, P was suspended from duty. An investigation by L disclosed that P was involved in the merchandising of products connected with bondage, domination, and sado-masochism through the Roissy website. P was open about his activities and admitted that he performed shows in hedonist and fetish clubs. L was concerned about the effect of the disclosure of P's activities on victims who looked to the Probation Service for help and regarded the nature of the acts in which P participated as incompatible with the role and responsibilities of a probation officer. On that basis, it concluded that public knowledge of P's activities would damage its reputation and dismissed P. P claimed for: (i) unfair dismissal under the Employment Rights Act 1996; and (ii) breach of his rights under Art.8 and Art.10 of the Convention. The tribunal found that P's dismissal was not unfair. It held that P had been dismissed for "some other substantial reason" within the meaning of s.98(1) of the 1996 Act. In relation to Art.8(2), the tribunal concluded that P's activities were in the public domain and therefore could not be termed as 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 reputations to maintain. On that basis, it concluded that Art.8 had not been engaged. As to Art.10, the tribunal accepted that P's activities were such that they might have damaged L's reputation. Therefore, it was reasonable for L to curb P's activities. Thus, even though Art.10 had been engaged, there had been no unjustified interference with P's freedom of expression and dismissal was a proportionate response. P appealed.HELD: (1) The tribunal's decision was sound. The present case was not about P's family life or his private correspondence. Thus, Art.8 was not engaged because P's activities had been publicised on the Roissy website. In addition, P performed in bars and clubs, which were open to the public, promoting Roissy's interests in bondage, domination and sado-masochism. X v Y (2003) ICR 1138 and Niemietz v Germany (1992) 16 EHRR 97 considered. (2) It was common ground that Art.10 had been engaged: P had a right to freedom of expression, to hold opinions and to impart information and ideas without interference by public authorities (including L). The issue was whether L's interference, by dismissing P, was proportionate and justified by Art.10(2). It was clear that L's actions were in pursuance of a legitimate aim, which was to demonstrate to the public the integrity of its officers and to protect its reputation, particularly given that P worked with sex offenders and vulnerable people. The evidence showed that: (i) P was not willing to sever his ties with Roissy; and (ii) the possibility of alternative deployment did not arise because L considered that P's involvement with Roissy was incompatible with any probation officer post. Therefore dismissal was a proportionate response and the tribunal was correct to hold that, after balancing the competing interests between the parties, there had been no violation of P's rights under Art 10.Appeal dismissed.