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Think your employer doesn't have a right to your private life? Think again.

A recent Employment Appeal Tribunal (EAT) case has upheld a decision that a Probation Service Officer (PSO) was fairly dismissed for failing to disclose to her employer child protection issues and dealings with social services.

The Tribunal correctly found that although the appellant’s (named ‘Q') right to a private life was engaged under Article 8, and was required to be taken into account when determining the fairness of the dismissal, the dismissal was deemed fair in the circumstances.

Background

In 2014, Social Services considered that Q presented a risk to her daughter and as a result, her daughter was placed on the child protection register and made the subject of a child protection plan. Considering the nature of her employment (safeguarding children was relevant to her job - as a PSO, Q did have a role to play in safeguarding children), Q was advised by Social Services to tell her employer about the issue. Q did not, however, inform her employer of the matter.

Social services therefore brought this to the Probation Services' attention and a disciplinary procedure was instigated. The Probation Services’ position was that Q's failure to disclose the matter called into question her professional judgment, and had the potential to damage its reputation. Q was found to have committed gross misconduct and was provided with a final written warning.

In February 2015, Q’s daughter was no longer on the child protection register or subject to a child protection plan and Q informed her employer about this. Unfortunately, in March 2015, a further incident between Q and her daughter resulted in her daughter being subject to a new child protection plan. Q did not inform her employer about this. When this eventually came to the employer's attention in June 2015, Q was dismissed for gross misconduct.

Q brought a claim for unfair dismissal, but the Employment Tribunal rejected her claim. It held that the dismissal was deemed reasonable as she was given final written warning for similar conduct and she was aware of her obligation to inform her employer about this matter.

On the subject of Article 8, the Tribunal also held that the Probation Service was entitled to interfere with Q's right to a private life. In the circumstances, it was necessary for such matters to be disclosed in order to safeguard the function, reputation and relationships of the Probation Service. It further stated that it did not matter that the alleged conduct was not in the public domain as the failure to disclose it had the potential to undermine public confidence in the Probation Service and it raised legitimate concerns about her professional judgment.

What do Employers need to think about?

The ECHR applies directly to the public sector and not the private. Nonetheless, it is important for private employers to remember that an Employment Tribunal must decide whether a dismissal involves a disproportionate interference with ECHR rights, which will affect whether a dismissal is fair.

Employers should ensure that their policies clearly set out what employees are required to report to them and give their employees regular opportunities to make such reports.

This case is a helpful reminder that in the right circumstances, an employer can take into account factors in an employee's private life during disciplinary proceedings, provided it is not disproportionate to do so. Case law on what is appropriate is varied so it will be wise to take legal advice before taking action. Generally speaking, what is a legitimate and proportionate reason to interfere with Article 8 are:

  • the impact upon the employer
  • its reputation (including the potential for damage to reputation)
  • relevance to the employee's role

If the Employment team can be of any assistance in connection with disciplinary policies, procedures or concerns, please do not hesitate to get in touch with us by contacting any of our offices: Banbury, Bicester, Rugby and London.

Alternatively, you can contact us directly on 01295 270999 or visit our website.


Please treat the contents of our blogs as general guidance only. Please do not take any action based on their contents unless you have sought specific legal advice. Brethertons cannot accept responsibility for any errors or inaccuracies, loss or damage in circumstances where there is no formal retainer between us and we have not given you personal and specific advice relating to a matter for which you have given us full background details.  You must also bear in mind that the contents of our blogs are based on English Law, and because they contain archival material, that material is likely to go out of date. Therefore, it is important to consider the date that the blog was posted. Please also remember that the law may differ in different Jurisdictions.