ARTICLE 8 & UNFAIR DISMISSAL – January 2020

January 23, 2020

ARTICLE 8 & UNFAIR DISMISSAL

 

Article 8 Human Rights act 1998 provides:

 

“Article 8 Right to respect for private and family life

 

  • Everyone has the right to respect for his private and family life, his home and his correspondence.
  • 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.”

 

Q v Secretary of State for Justice UKEAT/0120/19 was a recent case in which the Employment Appeal Tribunal looked at the application of the Article 8 in a conduct dismissal case.

 

What was it about?

 

The Claimant was employed as a Probation Service Officer. In 2014 there was an incident at the Claimant’s home involving the Claimant. It was alleged that the Claimant had been violent towards her daughter, something she denied. Social Services became involved and her daughter was placed on the Child Protection Register.

 

This matter was raised with the Respondent by Social Services. They told the Respondent that they had advised the Claimant that she should tell the Respondent, because of the safeguarding implications raised by the Claimant’s job; and that, when she did not do so, they then felt obliged to do so themselves.

 

This led to a disciplinary process in which the Claimant was found guilty of gross misconduct by failing to inform the Respondent of the matter, and in particular of the allegations against her. However, although the finding was of gross misconduct, she was not dismissed, but received a final written warning and was demoted.

 

The Respondent set out its reasons for the decision as follows:

 

  • The Local Authority Designated Officer (“LADO”) or a social worker had told the claimant to tell her employer that her daughter had been placed on the Child Protection Register.
  • That her professional judgment as a Probation Service Officer had been called into question because she worked with vulnerable adults and other agencies which may involve social services safeguarding;
  • Her lack of acceptance that the onus was on her to inform her manager of the situation;
  • Her behaviour had potentially brought the respondent into disrepute by a partner agency.

 

The Claimant appealed unsuccessfully against the finding.

 

In February 2015 the Claimant informed her manager that her child was no longer at risk or subject to a child protection order. Subsequently in March 2015 a further incident occurred and the Claimant’s child was again at risk. Whilst the Claimant did provide some information about the further incident to her manager, crucially the Claimant failed to inform her manager that the child was at risk again, she was not cooperating with social services and that she was the alleged source of that risk.

 

A disciplinary hearing followed and the Claimant was dismissed. The reason for the dismissal was conduct and the conduct identified was that she had knowingly withheld information about her involvement with social services and that she had brought the service into disrepute.

 

The Employment Tribunal found that Article 8 was engaged but went on to find that dismissal in the circumstances did not infringe the Claimant’s Article 8 rights and that the dismissal for conduct was fair. The Employment Tribunal addressed the Article 8 position as follows:

 

“However, the tribunal, in considering whether the claimant’s dismissal was within the range of reasonable responses, has considered whether the respondent’s interference with the claimant’s private life was proportionate. We conclude that it was proportionate. As in Pay v Lancashire Probation Service, the respondent has demonstrated that the probation service is an integral part of the criminal justice system and therefore its employees can be held to account for relevant matters occurring in their private life. The respondent is required to work as a statutory partner with social services and to ensure that its staff behave in a way which is commensurate to their obligations to the public in terms of safeguarding the vulnerable and children. The information from the claimant’s private life (that she was not cooperating with social services and that social services had judged that her daughter was at risk from the

claimant’s behaviour) was clearly capable of bringing the respondent into disrepute and if known to the public could undermine public confidence in the probation service. The respondent was therefore justified in considering these private matters when considering whether it could continue employing the claimant

 

What did the Employment Appeal Tribunal think?

 

HHJ Auerbach dismissed the Claimant’s appeal. In paragraphs 50 – 57 there is a helpful run through of the authorities in the judgment in respect of Article 8 engagement in unfair dismissal cases.

 

Unlike Pay v United Kingdom [2008] ECHR 1007 the justification for infringing the Claimant’s rights was not that it was likely to become public knowledge (although it was acknowledged that if it did it would damage the reputation of the Respondent) rather it was about the unique position of the probation service and its relationship with other statutory agencies.

 

The information sought by the Respondent clearly related to her private life however the information was limited to being informed about the involvement of social services rather than any other matters involving her relationship with her child. Whilst it was accepted that the Claimant herself did not have specific safeguarding responsibilities it was the fact that the Probation Service dealt with the local authority and in order to so effectively it needed to maintain its reputation with such statutory partners.

 

The legitimate aim had been established. The information which she was required to provide was limited. The instruction and the previous warning made the Respondent’s position clear. In those circumstances her conduct dismissal was fair.

 

What can we take away?

 

Whilst this case involved a state body, the probation service, the same considerations is likely to come into play for any organisation which was required to work closely with other statutory bodies and maintain confidence with them.

 

On a practical note the Article 8 point was not raised by the Claimant. It was the Respondent’s representative who raised the issue (quite properly in the view of HHJ Auerbach). When dealing with a litigant in person it is essential that the professional representative ensures that such issues are before the Employment Tribunal as failing to so will likely lead to criticism at any appeal and risk a successful appeal followed by the expense of a  rehearing.

 

 

Peter Doughty

Tags:
Employment, Family, Property and Planning, Will Disputes