Pay v Lancashire Probation Service [2003] UKEAT 1224_02_2910; [2004] ICR 187; [2004] IRLR 129
Pay v United Kingdom [2008] ECHR 1007; [2009] IRLR 139; (2009) 48 EHRR SE2, application no. 32792/05
What the decisions established
A probation officer unsuccessfully challenged his dismissal over activities outside work. The Employment Appeal Tribunal dismissed his appeal on 29 October 2003. On 16 September 2008, the European Court of Human Rights unanimously declared his application inadmissible.
The courts took different approaches to Article 8, the right to respect for private life. The domestic tribunal held that it was not engaged. The European Court proceeded on the assumption that it applied, without finally deciding that question, but held that the dismissal was not disproportionate. Both considered the officer’s freedom of expression under Article 10 and found no unjustified interference.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
Facts and the dismissal
Laurence Pay had worked for Lancashire Probation Service since 1983, specialising in work with sex offenders. He was well regarded for that work. Outside employment, he was a director of Roissy Workshops Ltd, which supplied products connected with bondage, domination and sadomasochism, and he performed at clubs associated with those activities.
After receiving information from the police, the service investigated. Its concerns included internet material connecting Pay with the performances. Pay said that photographs had been published without his permission and arranged for their removal. The employer accepted that the activities were not criminal, but considered their public association with a probation officer incompatible with his responsibilities, particularly his work with sex offenders and vulnerable people.
The employer decided to dismiss him and upheld that decision through its internal appeal process. The Employment Tribunal found the dismissal fair for some other substantial reason under section 98 of the Employment Rights Act 1996. Its concern was the potential effect on confidence in the service, rather than criticism of Pay’s professional performance.
The Employment Appeal Tribunal’s decision
The EAT accepted that a public authority employer would not act reasonably under section 98(4) if it violated the employee’s Convention rights. A tribunal deciding unfair dismissal therefore had to bring those rights into its assessment of reasonableness. It was permissible to examine the ordinary unfair dismissal issues and the human rights issues separately, provided they were ultimately considered together.
On Article 8, the EAT upheld the tribunal’s conclusion that Pay’s activities fell outside private life because they had been publicised through websites and took place in clubs accessible to the public.
Article 10 was engaged. The EAT considered whether dismissal was proportionate to the employer’s aim of protecting the service’s reputation and the confidence of those affected by its work. The tribunal had found that Pay was unwilling to alter his connection with Roissy. Removing website links was different from severing that connection. Alternative duties had also been considered, but the employer regarded the activities as incompatible with any probation officer role.
The EAT found no error of law in the tribunal’s balancing of the competing interests. It dismissed the appeal and refused permission to appeal. Subsequent attempts to take the case to the Court of Appeal ultimately failed.
The European Court’s treatment of private life
The European Court stressed that private life could extend beyond conduct in a person’s home. It could include interaction with others, including some activity in a public or professional setting. A person’s reasonable expectation of privacy was relevant but not necessarily decisive.
Here, the performances took place in a nightclub likely to attract a self-selecting group of like-minded people, and the online photographs were anonymised. The Court therefore assumed, without finally deciding, that Article 8 applied and that dismissal interfered with Pay’s rights. It did not simply adopt the domestic conclusion that publicity excluded Article 8 protection.
The Court recognised that dismissing a specialist public servant was a severe measure. Nevertheless, Pay’s work required the respect of the offenders he supervised and the confidence of the public and victims of sexual offences. The national authorities were entitled, within their margin of appreciation, to take a cautious view of how wider knowledge of the activities could affect that work.
Although less severe measures might have been possible, the Court relied on the domestic findings about Pay’s unwillingness to alter his connection with Roissy and curb the aspects most likely to become public. In those circumstances, dismissal was not disproportionate. The Article 8 complaint was manifestly ill-founded.
The remaining complaints and outcome
The Court held that Article 10 applied to Pay’s expression of aspects of his sexual identity, but that the interference was justified for the same reasons. It also rejected his Article 14 discrimination complaint: the dismissal concerned the anticipated effect of public knowledge of his performances on his work, rather than his sexual orientation as such, and had an objective and reasonable justification.
The Article 6 complaint about proceedings lasting just over four years was rejected in light of the procedural history and the different levels of tribunal involved. Article 13 did not require a further remedy for complaints under Articles 8 and 10 which were not arguable. The entire application was declared inadmissible.
The decisions turned on Pay’s particular duties, the publicity surrounding his activities and the findings about possible alternatives. They did not establish that every lawful activity outside work could justify dismissal, or that public exposure automatically removed the protection of private life.
Original decisions: Employment Appeal Tribunal, 29 October 2003; European Court of Human Rights, 16 September 2008.
