The Employment Appeal Tribunal recently considered whether a probation service officer who failed to disclose a child protection issue was fairly dismissed. Ceri Fuller, Zoë Wigan and Hilary Larter analyse the outcome.
In Q v Secretary of State for Justice UKEAT/0120/19/JOJ a Probation Service Officer was not unfairly dismissed after deliberately failing to give her employer full information about Social Services’ concerns that she presented a risk to her daughter.
An employee, known during litigation as “Q”, was employed as a Probation Service Officer. Allegations were made (which she vehemently denied) that she had been violent towards her teenage daughter. Social services became involved, and Q’s daughter was placed on a Child Protection Register. Social services advised Q to tell her employer about this, given the safeguarding implications for her job, but Q did not so. Social services raised the issue with the Probation Service, and this led to disciplinary proceedings. In not informing her employer, Q was found to have committed gross misconduct. Rather than being dismissed, Q was given a final written warning and demoted.
Sometime later, Q told H, a senior manager, that her daughter was no longer on the Child Protection Register and was no longer subject to a Child Protection Plan. However, following an altercation with her daughter, Q was visited by the police and social services and a new child protection plan was put in place. Q gave H some information about this, but did not tell him that her daughter was subject to a new child protection plan because of the risk that Q (rather than a third party, to whom Q had referred in her communications with H) allegedly posed to her daughter. When H discovered this, the disciplinary procedure was instituted and Q was dismissed for gross misconduct as she had failed to inform the Probation Service that the child protection plan was re-instated because of the risk allegedly posed to her by Q, and because of reputational issues for the Probation Service as a result of social services’ statutory partnership with the Probation Service.
Q claimed that she had been unfairly dismissed. The Employment Tribunal rejected her claim, and Q appealed to the Employment Appeal Tribunal (EAT). Q’s appeal was mainly concerned with the impact of Q’s rights under Article 8 of the Human Rights Convention in the context of an unfair dismissal claim. Article 8 gives everyone the right to respect for their family and private life, home and correspondence, without interference by public authorities, except in certain circumstances. Q claimed that she should not have been dismissed for something in her personal life.
The EAT, referring to previous case law on Article 8 in the context of unfair dismissal claims, considered that (whether the claim is brought against a public or private employer) a Tribunal must, in deciding whether the dismissal is fair or unfair, come to its own view as to whether dismissing the employee involved a disproportionate and unjustified interference with Article 8 rights. If it did, the dismissal will fall outside the range of reasonable responses. If not, then the dismissal will not be unfair because of infringement of the Article 8 right (though it may be unfair for other reasons). This will be the case irrespective of whether the employer itself had considered the impact of the Article 8 right.
In this case, the EAT held that the Tribunal had properly taken Q’s right to a private life into account. It had accepted that Article 8 was engaged, in that Q’s personal life at home (including very private issues) were considered by her employer when dismissing her, and this information was not in the public domain. However, the Tribunal had concluded that Q’s dismissal was a proportionate interference with her right to privacy. Among other things, it was relevant that the Probation Service works as a statutory partner with social services and that it has to ensure that its staff behave in a way that is commensurate with their obligations to the public in terms of safeguarding the vulnerable. In the Tribunal’s view, the information about Q’s private life was clearly capable of bringing the Probation Service into disrepute. The EAT held that the Tribunal had been entitled to come to this conclusion.
What does this mean for employers?
There are many circumstances under which it would be unfair (and potentially discriminatory) for employers to require employees to disclose information about their private lives and to dismiss them for failing to do so. If employers are considering taking any action against employees in relation to their private lives, they must carefully consider whether the relevant aspects of their private lives have a genuine and significant impact on their working lives.