PAY v. THE UNITED KINGDOM
Inadmissible
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Laurence Pay, is a British national who was born in 1951 and lives in Kirkham. He was represented before the Court by Liberty, a non-governmental organisation based in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant joined the Lancashire Probation Service (“LPS”) in 1983. He quickly became involved in the treatment of sex offenders and was well regarded by his employers and the courts in respect of this work. In October 1999, probation officers were sent a form in which they were asked to declare whether or not they were freemasons. The applicant stated that he was not a freemason but listed a number of other organisations of which he was a member, including “The House of Roissy”. This organisation subsequently became “Roissy Workshops Ltd” (hereafter, “Roissy”), of which the applicant was a director. On 25 July 2000 Lancashire Police received an anonymous fax, in which it was claimed inter alia that Roissy advertised its services on the internet as the builder and supplier of products connected with bondage, domination and sadomasochism (“BDSM”) and the organiser of BDSM events and performances. The fax included a photograph of the applicant, wearing a mask, with two semi-naked women. On 27 July 2000 the fax was sent by a police officer to one of the applicant’s colleagues, who brought it to the attention of LPS senior management. LPS undertook an investigation, and found that Roissy was registered at the applicant’s address and that its website included links to a number of BDSM websites, including “Birmingham Bizarre” (“BB”), which advertised various events and included photographs of the applicant and others, semi-naked, performing acts which the accompanying text indicated had taken place at a local private members’ club and involved male domination over submissive women. The applicant was immediately suspended on full pay, on the ground that LPS had reason to believe that the above activities might be incompatible with his role as a probation officer and bring LPS into disrepute. The applicant admitted that he was involved in the performance aspect of Roissy’s activities but claimed that he had never authorised photographs of himself of the type included in the fax to be published on the internet and that the owners of the BB website had now removed the photographs at his request. Although the LPS official carrying out the investigation considered that the photographs were in the nature of soft pornography and depicted acts which were degrading to women, the applicant disagreed. The investigating official concluded that the applicant was unwilling to accept that his involvement in activities of this nature was inappropriate. She made a report to the LPS Assistant Chief Probation Officer. The Assistant Chief Probation Officer reviewed the report and concluded that while the Roissy website itself did not contain photographs of sexual activity it was linked to other websites which did. She considered that the activities shown on the BB website were indecent and exploitative. Although she took into account the rights contained in Articles 8 and 10 of the Convention, and the applicant’s 17 years of service, she formed the view that the applicant had acted in a way which was incompatible with his job working with sex offenders and vulnerable people. She considered that the information shown on the website could be “badly misinterpreted”. On 19 September 2000 LPS commenced disciplinary proceedings against him. Following a hearing before the Panel of the Personnel Hearings Sub-Committee (“the Panel”) on 19 October 2000, the applicant was formally dismissed on 23 October 2000. The Panel, which accepted that the applicant’s activities were not contrary to criminal law, considered, however, that, given the nature of the acts shown in the internet photographs and referred to in the Roissy advertisements, the fact that this material was in the public domain was incompatible with his position as a probation officer, particularly an officer working with sex offenders. They held that the Probation Service had a responsibility to the public to maintain confidence in the integrity of its officers and that public knowledge of the applicant’s activities would damage the reputation of the Service. The applicant’s appeal to a differently constituted Panel was dismissed on 8 January 2001. The Panel considered whether the applicant should be given alternative employment within the Probation Service, but took the view that such a proposal would be inappropriate given the conclusion that his activities had been found to be incompatible with the role of any probation officer. On 5 February 2001 the applicant commenced proceedings in the Employment Tribunal (“ET”) to challenge his dismissal. In its judgment of 8 August 2002, following a hearing which concluded in July 2002, the ET made the following findings of fact: “It was clear having listened to extensive evidence from the respondent’s witnesses, and which was probed in great depth on behalf of the applicant, that the investigating officers and the disciplinary and appeal panel had very grave concerns that the activities of the applicant were incompatible with his role as a probation officer. Throughout his interviews the applicant sought to justify his activities and did not accept that these activities could be incompatible with his role as a probation officer. 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 Bizarre website removed.” The ET continued: “Great play was made on behalf of the applicant that the approach of the respondents, both with its investigating officers and the disciplinary panels, were prudish and narrow-minded. ... The [ET] 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”. The ET concluded that the dismissal fell within the range of responses of a reasonable employer. It further concluded that Article 8 of the Convention was not engaged because the activities in question were in the public domain and did not therefore form part of Mr Pay’s private life. Article 10 was engaged, but not infringed. The ET recognised that an employee owed duties to his employer and that the conduct of the employee should not bring the work of the employer into disrepute. The work of the Probation Service was sensitive and it was important that employees did not bring into the public domain views or activities which could have an adverse impact. It was not therefore incompatible with Article 10 to place some limitation on a probation officer’s freedom of expression and it was reasonable of the LPS to have taken the view that the activities of the applicant, taken in the round, could be damaging to it and needed to be curbed. The applicant appealed to the Employment Appeal Tribunal (“EAT”) which dismissed the appeal in a judgment dated 29 October 2003. The EAT found that Article 8 was not applicable and saw no error in the ET’s judgment to that effect. In considering the proportionality of the dismissal under Article 10, the EAT observed that the ET had found as a fact that throughout the disciplinary proceedings the applicant had not been prepared to accept that his employers’ view of his activities had been reasonable and had only offered at a very late stage to take steps to have references to the BB website removed. The EAT continued: “That finding reflects a dispute which arose at the [ET]. 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 [ET] is amply borne out by the evidence ... 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 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. As to the possibility of alternative deployment, the respondent considered that his activities were inconsistent with any Probation Officer’s duties. ... 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.” The EAT concluded that ET had committed no error of law when it decided that the dismissal had been proportionate under Article 10. On the issue of delay the EAT commented: “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.” On 12 March 2004 the applicant filed notice of an application to seek leave to appeal to the Court of Appeal. This application was filed outside the 14 day time-limit and was rejected on 23 April 2004. He made a renewed application, claiming that the delay had been caused by the fact that legal aid had not been granted until 6 March. On 26 May 2004 the Court of Appeal provisionally granted the applications for leave to appeal and an extension of time, but allowed the respondent LPS 14 days to oppose this order. Lord Justice Sedley observed: “It seems to me that there is one issue which is capable of engaging the attention of this court. Accepting, as the EAT did, that, in order to be fair, a dismissal has to be Convention compliant ..., it seems to me arguable that, properly appraised, the factors before the Employment Tribunal did not make it proportionate to dismiss Mr Pay, given that the dismissal was held to have been not for incapacity but for some other substantial reason. The substantive reason was, in effect, the damage that would be done to the good name and standing of the Probation Service were it to become public that Mr Pay, working as he did with sex offenders and their victims, was involved in an activity involving bondage and sadomasochism. The question is not unproblematical. Under Article 8, it is debateable whether this is a matter of private life since the activities were publicised on the internet, but it does seem to me arguable that, to the extent that Mr Pay’s own sexual proclivities were in issue, they related to his private life as much as to matters he had publicised. What perhaps is more important is the proportionality of dismissal in a situation in which the dismissal was prompted not by considerations of personal unsuitability for the job, but by legitimate considerations of adverse publicity which would rebound on the Probation Service.” Lord Justice Maurice Kay had greater misgivings about the appeal’s prospects of success but was prepared to grant leave on the above terms. The respondent LPS opposed the applications. On 5 November 2004 an identically constituted Court of Appeal issued a supplementary judgment, without the benefit of oral argument, in which it held that in the light of the full Court of Appeal’s judgment in X v. Y (see below), it now appeared that the applicant’s appeal had no prospect of success and there could therefore be no useful purpose in granting the extension of time. The applicant made a renewed oral application to the Court of Appeal, which was rejected on 7 March 2005. The Court of Appeal again refused to grant an extension, since the question of principle had been decided in X v. Y. In parallel with X v. Y, there had been a waiver or forfeiture of privacy, on different grounds but with the same legal effect. Article 8 was not, therefore, engaged. Although Article 10 was applicable, the LPS had been entitled to react as it did to the consequences for it of the applicant’s exercise of his right to free speech. Under section 94(1) of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by his employer. By section 98(1), an employer must show a reason for a 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: “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.” The applicant in the above case worked as a part time development officer for a charity which aimed to promote, through voluntary work, the personal development of young offenders and those at risk of offending in the 16-25 age group. When the applicant had been working for the respondent charity for about three years, his employers discovered that six months previously he had been arrested and cautioned by the police for having committed a consensual sexual act with another man in a public toilet. The caution came to light as a result of normal police checks made by the local Probation Service before providing further funding to the respondent. Disciplinary proceedings were taken against the applicant. He was dismissed and subsequently complained to the ET. The ET found that it had been fair and reasonable for the respondent to treat the applicant’s conduct as grounds for dismissal. He had committed a criminal offence and shown an inappropriate lack of self control and serious lack of judgment. Given the sector in which he was employed, his failure to tell his employer about the caution was a serious matter which had undermined the respondent’s trust and confidence in him. The applicant appealed to the EAT, contending that his dismissal had breached his rights under Articles 8 and 14 of the Convention. The EAT held that Article 8 did not apply, as the conduct, a “transitory sexual encounter” between two strangers in a public toilet, was not covered by the right to respect for private life. Article 14 did not, therefore, apply, but even if it did, the applicant had not been dismissed on grounds of sexual orientation but instead because he had committed a criminal offence and failed to disclose it. The applicant then appealed to the Court of Appeal. The Court of Appeal proposed a framework of questions to assist employment tribunals in dealing with Convention issues in unfair dismissal cases between private litigants, but held, on the facts of the case before it, that Article 8 was not engaged, since X was dismissed for conduct which was a criminal offence and which occurred in a place to which the public had access. Until its repeal on 1 April 2001, the duties and functions of probation officers were regulated by the Probation Service Act 1993. Section 14 provided that: “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.” In its judgment in the present case, the EAT observed: “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 the victims of crime.”