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Can Employees Be Dismissed for Behaviour Outside of Work?

on Friday, 24 January 2020.

A Probation Service Officer (PSO) was fairly dismissed for failing to disclose to her employer child protection issues and dealings with social services.

The Employment Appeal Tribunal (EAT) upheld an Employment Tribunal decision that a PSO named Q was fairly dismissed.

The Tribunal correctly found that Q's right to a private life was engaged under Article 8 of the European Convention on Human Rights (ECHR), and was required to be taken into account when determining the fairness of the dismissal. However, the dismissal was deemed fair due to circumstances.

A Case of Reasonable Dismissal

In 2014, Q's daughter was placed on the child protection register and made the subject of a child protection plan. Social Services considered that Q presented a risk to her daughter and advised Q to tell her employer about the matter. This was on the basis that safeguarding children was relevant to her job - as a PSO, Q did have a role to play in safeguarding children. Q failed to inform her employer of the matter.

Social services instead brought this to the Probation Services' attention and a disciplinary procedure began. Q's failure to disclose the matter called into question her professional judgment, and had the potential to damage the Probation Services' reputation. Q was found to have committed gross misconduct and was given a final written warning.

In February 2015, Q informed her employer that her daughter was no longer on the child protection register or subject to a child protection plan. 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 the matter, or new plan that had been imposed. When this came to the employer's attention in June 2015, Q was dismissed for gross misconduct.

Q claimed unfair dismissal, but the Employment Tribunal rejected Q's claim. 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.

The Tribunal also found that the Probation Service was entitled to interfere with Q's right to a private life, as it was necessary for these matters to be disclosed in order to safeguard the function, reputation and relationships of the Probation Service.

In the circumstances, it did not matter that the alleged conduct was not in the public domain as the failure to disclose it raised legitimate concerns about her professional judgment, and had the potential to undermine public confidence in the Probation Service.

How Does This Impact Employers?

This case is a reminder that an employer can take into account factors in an employee's private life during disciplinary proceedings, provided it is not disproportionate to do so. Different factors will assist in demonstrating that a dismissal was fair, and that any interference with Article 8 rights is both for a legitimate reason and proportionate.

 These factors are:

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

Whilst the ECHR applies directly to the public sector and not the private, 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.

For specialist legal advice on dismissals, please contact Richard Hewitt in our Employment Law team on 0117 314 5320, or complete the form below.

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