Human Rights and Unfair Dismissal: Private Acts in Public Spaces
| Date | 01 November 2008 |
| Published date | 01 November 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00722.x |
| Author | Virginia Mantouvalou |
Human Rights and Unfair Dismissal:
Private Acts in Public Spaces
Virginia Mantouvalou
n
This article addresses the termination of employmentbecause of the conduct of the employee in
her leisure time, in the light of the right to private life. It explores the impact on the retention of
employment of activities taking place outside the workplace and outside working hours, and
argues that the approach of UKcourts a nd tribunals, which is based on a primari ly spatial con-
ceptualisation of privacy, is £awed. A fresh approach to privacy, resting on the idea of domina-
tion, is proposed, which is sensitive to the particularities of the employment relationship.
Considering the fairness enquiry in dismissal, it argues that o¡-duty conduct mayle ad to lawful
termination of employmentonly if there is a clear and present impact or a high likelihood of such
impact on business interests; a speculative and marginal danger does not su⁄ce. It further pro-
poses that a particularlymeticulous test is appropriate whencertai n suspect categories, such as the
employees’sexual preferences, are at stake.
INTRODUCTION
Driving back home on awinter Saturday night, Mr X stopped at atransport cafe
Ł
between two towns to use the lavatory. In the toilet hemet a man with whom he
had consensual sex. A police o⁄cer entered the toilet and arrested them both.
Mr X,‘very shocked and frightened’,
1
was driven to the police station andput in
a cell. He was interviewed and was reassured that further action would not be
taken unless he re-o¡ended within ¢ve years. Having being cautioned for gross
indecency, his name was placed on the SexO¡enders Register. His o¡ence was to
have engaged in homosexual activity in publicwith a consenting adult under sec-
tion 13 of the Sexual O¡ences Act 1956, as amended by the Sexual O¡ences Act
1967. Mr X was employed by a charity organising activities for young o¡enders.
His employer, who had access tothe Register, was informedof the o¡ence. Mr X
was dismissed.
Mr Pay performed shows in hedonist and fetish clubs in his leisure time and was also
a director ofa companyselling products connected withbondage andsadomasochism
on the internet; photographs of him and semi-naked women and men were available
online. Mr Pay was employed as aprobation o⁄cer. At some point he disclosed to his
n
Lecturer in Law, University of Leicester. Thanks are due to Nicos Alivizatos, HarryArthurs, David
Bonner, Leto Cariolou, Colm O’Cinneide, Nicholas Hatzis, Dimitris Kyritsis, Stuart Lakin, George
Letsas and two anonymous refereesfor comments on a draft of this article. Earlier versions were pre-
sented at the 2007 Societyof Legal ScholarsConference in Durham,a sta¡ seminarat the University of
Bristol and the LSE Cumberland Lodge away weekend. I am thankful to Mark Bell, Steven Greer,
PascaleLorber,ToniaNovitz, Achilles Skordas,Charlie Webband MikeWilkinson for their comments
and suggestions.
1XvY[2004] ICR1634 BrookeLJ at [75].
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(6) 912^939
employer that he belonged to a number of organisations, and the employer was later
informed about his activities in detail. Although his o¡-duty conduct had no impact
on his performance at work, the employer held the view that it was incompatiblewith
his professional duties as a probation o⁄cer. Mr Pay was dismissed.
Were the dismissals of Mr Pay and Mr X lawful? Or, to widen our focus, maya
person lose her job due to the way she conducts herself in her leisure time, or for
reasons connected with her intimate relationships? The point of this article is to
address this question by exploring the protection of the right to private life in
employment, an admittedly rich and complex subject. My analysis does not exam-
ine all aspects of workplace privacy, but explores a speci¢c issue: that of the impact
on the retention of employment of activities taking place outside the workplace and
outside working hours.This is a facet of the interrelationship between work and
private life that has been insu⁄ciently analysed in the academic literature, which
usually dis cusses privacy with in the workplace and worki ng hours.
2
Yet this matter
warrants separate consideration given the potentially grave implications for indivi-
dual autonomyand soc ial interaction, if it is left unregulated. In this regard,my pur-
pose is to assess the legality of a dismissal resulting from the fact that an employer
disapproves of the conduct of the employee, either because it believes that the beha-
viour in question mayhave a negativee¡ect on business i nterests, or because it rejects
it as a personal choice on moralistic or other grounds.
To develop my argument, I ¢rst examine the decisions of UK courts and tri-
bunals in the cases of XvY
3
and Pay vLancashire Probation Service,
4
the facts of
which have been discussed above, with a view to identifying the criteria articu-
lated in judicial reasoning when interpreting privacy. These criteria are primarily
based on a spatial conceptualisation of private life, which implies that activities
occurring in a public space cannot constitute elements of the employee’s private
life. The court’s approach i n XvYalso draws upon the criminal character of the
o¡-dutyconduct, as an additionalelement removing it from the realm of privacy.
My position is that the current conceptualisation of the right to private life is
erroneous, and that it should be revisited.We cannot advance a fresh suggestion
without an analysis of the value of privacy, which will deepen ouru nderstanding
2 Se eJ. D. R. Craig, Privacy and Employment (Oxford: Hart,1999); M. Ford,‘Two Conceptions of
Worker Privacy’ (2002) 31 ILJ135;H. Oliver,‘Email and Internet Monitoring in the Workplace:
Information Privacyand Contracting Out’ (2002) 31ILJ 321;A. McColgan,‘Do Human Rights
Disappear in theWorkplace’(2003) EHRLR supplement (special issue) 119. For a recent analysis,
see M. Freedland,‘Privacy, Employment and the Human Rights Act1998’ in K. Ziegler (ed),
Human Rightsand PrivateLaw (Oxford: Hart, 2007) 141. For the German approachse e, in the same
collection, M. Coester,‘Protection of Employees’ Individual Rights in the Employer-Employee
Relationship’ 133.For an overviewof the debates in the US, see A. Bernstein,‘Foreword:WhatWe
TalkAbout WhenWeTalk AboutWorkplacePrivacy’ (2005-20 06) 66 LouisianaLaw Review 923.
This issue of the Louisiana Law Reviewincludes a number of articles that deal with di¡erent aspects
of the topic.The article by M. W. Finkin, ‘LifeAway fromWork’ of this issue provides a useful
comparative analysis that focuses on activities after work and their impact on the retention of
employment, but does not examine the example of the UK. On the position in France, see the
special issue of the (2004) Droit Social, entitled ‘VieProfessionnelle etVie Personnelle’.
3XvY[2004] ICR 1634 (XvY).
4Pay vLancashireProbation Service[20 04] ICR 187 (Pa y).The case was declared inadmissible bythe
European Court of Human Rights when this article was at press. See Pay v United Kingdom,
App No32792/05 Admissibility Decision of 16 September 2008.
Virginia Mantouvalou
913
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(6) 912^939
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