Julie Dunane CG Professional

When Can Sexual Fetishes Lead To a Dismissal?

Julie Duane, Solicitor Advocate at CG Professional.

In the case of Pay v Lancashire Probation Services [2004] the Employment Appeal Tribunal was required to determine whether an employer had unfairly dismissed an employee in violation of his Convention rights when his activities outside of work conflicted with his professional duties.

The Facts

The Applicant was a probation officer in a prison and was often required to work with various sex offenders, however in his spare time he conducted public sadomasochistic activities outside of work.  This included selling bondage, S&M online and performing in fetish clubs.  As a result, the Respondent terminated the individual’s employment on the basis that his activities were potentially damaging to the probation service. 

The Employment Tribunal was therefore required to determine whether the dismissal was a proportionate response, or whether this breached the individual’s Article 8 and Article 10 Rights.  In the first instance, it was found that dismissal was fair and proportionate.

The EAT

The Appellant appealed the decision to the EAT.  The EAT held that the dismissal was fair and did not constitute a breach of the Appellant’s Article 8 and Article 10 of the European Convention on Human Rights on the basis that:

  1. there was a genuine concern about the effect of the disclosure of the individual’s activities;
  2. his outside activities were incompatible with the roles and responsibilities of a probation officer, and
  3. public knowledge of this individual’s activities would in effect damage the reputation of the service. 

The EAT, therefore, held that the individual had been dismissed for some other substantial reason within the definition of section 98 subsection 1 of the 1996 Act. 

In relation to Article 8(2), as the individual’s activities were within the public domain it, therefore, failed to satisfy the criteria that this was termed part of his private life. It was also held that the role of a  probation officer, like other professionals, did not cease to be a probation officer outside of work and as such there was a reputation to maintain.  For those reasons the test set out under Article 8 had not been engaged.

With respect to Article 10, the Tribunal held that the activities were of such a nature that they may have caused damage to the probation services reputation.  It was, therefore, reasonable for the Respondent to take action in order to curb the individual’s activities.  Whilst it was acknowledged that Article 10 had been engaged, there was no evidence to show that there had been an unjustified interference with the individual’s freedom of expression and therefore dismissal was a proportionate response.  It was therefore held because there were competing interests between the parties, there had been no violation of the employee’s convention rights and therefore dismissal was fair under all the circumstances.

Points to note for Employers

Employers will have seen that recent case law has started to focus on the privacy of employees in their own time and unfair dismissal claims.  It is therefore very difficult for an employer to demonstrate competing interests and why the damage to their reputation is of such a standard that it will render a dismissal to be warranted for some other substantial reason.  In this particular case due to the nature of the role, the public activities and the substantial damage that could be caused, these were all deemed reasonable factors for an SOSR dismissal.  Employers should, however, consider a number of factors when contemplating dismissal in this type of case and we strongly recommend seeking legal advice early doors.

If you have any questions regarding the content of this article or have another employment query, please do not hesitate to contact a member of the CG Team who will be more than happy to assist.

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