Pay v Lancashire Probation Service [2004] ICR 187; Pay v UK [2009] IRLR 139

Unfair dismissal – reason for dismissal – some other substantial reason – sexual behaviour outside work - respect for private life (Article 8 ECHR)

The claimant was involved in the sale of products connected with BDSM and performing in fetish clubs. Photographs were available on the internet of him involved in these activities. The claimant was a probation officer working with sex offenders. The employer dismissed him on the basis that his activities were inconsistent with the role of probation officer. The claimant claimed unfair dismissal, relying on his Article 8 ECHR right to respect for private life.

The EAT held that section 98 of the Employment Rights Act 1996 should be interpreted as including 'having regard to the applicant's Convention rights' but that Article 8 was not engaged because the activities were in the public domain, as photographs were available on the internet and the activities took place in fetish clubs. The claimant's activities were therefore not 'private'.

The case was heard before the European Court of Human Rights as Pay v UK. The ECtHR adopted a different approach, finding that conduct occurring outside a purely private place could still fall within the protection of Article 8 as 'private life'. The court was content to continue on the basis that the claimant's Article 8 right was engaged. However, it found that any interference with his right was justified.