Scottish Human Rights Law Group

 

A probation officer involved in the treatment of sex offenders was dismissed as a result of his connection with an organisation involved in bondage, domination and sadomasochism and an associated website. His activities took place in a club which was open to the public.  His dismissal engaged both Article 8 and Article 10 but was a proportionate measure in the circumstances. His complaint about the length of the proceedings, the availability of an adequate domestic remedy and discriminatory treatment under Articles 6, 13 and 14 respectively were all dismissed. 

Background

 

The Applicant worked for Lancashire Probation Service (“LPS”). He was involved in the treatment of sex offenders. In 1999 it came to the attention of LPS that the applicant was a member and director of an organisation (“Roissy”) which advertised its services on the internet as a supplier of products connected with bondage, domination and sadomasochism (“BDSM”) and organisers of BDSM events and performances. 

 

LPS investigated and discovered that that Roissy was registered at the applicant’s home address, and that the website contained links to a number of BDSM websites including one known as “Birmingham Bizarre” which advertised various events and included photographs of the applicants and others, semi-naked, performing acts which the text indicated had taken place at a local private member’s club and involved male domination over submissive women. 

 

Following an investigation LPS instigated disciplinary proceedings against the applicant and he was dismissed on 23 October 2000. The disciplinary panel accepted that the activities were not contrary to the criminal law but nonetheless, given the nature of the acts shown in the photographs and referred to in Roissy’s advertisements, the fact that the material was in the public domain was incompatible with his position as a probation officer, particularly given his work with sex offenders. They held that the Probation Services had a responsibility to maintain public confidence in the integrity of its officers and that public knowledge of the applicant’s activities would damage the reputation of the service.

The applicant appealed unsuccessfully against the dismissal. He commenced proceedings in the ET in February 2001. The ET found the dismissal to be fair and considered that Article 8 was not engaged because the activities in question were in the public domain and did not therefore form part of the applicant’s private life.  The ET also found that although Article 10 was engaged, it was not infringed. The work of LPS was sensitive and it was not incompatible with Article 10 to place some limitation on a probation officer’s freedom of expression. The applicant’s  appeal to the EAT was unsuccessful. 
The applicant then appealed to the Court of Appeal. In the course of his Appeal the Court of Appeal’s judgement in  EWCA Civ 662 was issued. As a result of that decision the Applicant’s appeal to the Court of Appeal was ultimately refused on the basis that since the Applicant’s activities took place in public there had been in effect a waiver of the Applicant’s privacy.

 

The applicant complained to the EctHR on the following grounds:-

 

under Articles 8 and 10 of the Convention, that his dismissal constituted a disproportionate interference respectively with his right to respect for his private life and his right to freedom of expression. 

Under Article 6, in relation to the length of the proceedings

Under Article 13 that he was denied an effective remedy because the jurisdiction of the EAT was confined to questions of law; and

Under Article 14 together with Articles 8 and 10 that he was subjected to differential treatment because of his sexual orientation. 

 

Article 8

 

The applicant submitted that his activities fell within the scope of “private life”, since they were an important part of his sexual expression and sexual orientation. His performances took place in a private club, to which access was limited. The applicant had not sought to communicate his activities to a wider public. The mere fact that his activities did not take place in an entirely private forum could not be sufficient to constitute a waiver of his Article 8 rights. Nor was the fact that Roissy was a commercial enterprise sufficient to bring his activities outside the scope of Article 8.

 

He did not dispute that his dismissal was lawful, and that the interference with his rights under Article 8 was in pursuit of a legitimate aim – namely the protection of the reputation of the LPS.

 

He argued that as a public authority, the right of the LPS to protect its reputation was limited by the requirement to take into account the overall aims of the Convention which included broadmindedness and tolerance as hallmarks of a democratic society.

 

Finally, in the applicant’s view, the decision to dismiss him was not proportionate since the LPS did not pursue alternatives, such as asking him to cease his performances or end his involvement with Roissy.

 

The EctHR held that private life is a broad term not susceptible to exhaustive definition. It extends to the right to establish relationships with others in the outside world, and there there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life. A person’s reasonable expectation of privacy may be a relevant but not necessarily conclusive factor.

 

In this case the applicant’s activities took place in a nightclub frequented by a self-selecting group of like-minded individuals. Photos of him which appeared on the website were anonymised. In the circumstances the Court was prepared to proceed on the assumption that Article 8 was engaged. 

 

On that basis his dismissal for activities which fell within the scope of Article 8 amounted to an interference with his rights under that Article. 

 

In assessing whether the dismissal was proportionate the Court noted that dismissal of a speciliased public servant was a very severe measure because of the impact it would have on his ability to find work in the field in which he was trained. 

 

The Court also noted that an employee owes his employer a duty of loyalty, reserve and discretion. In the present case the applicant’s job involved, inter alia, working closely with convicted sex offenders who had been released from prison, to ensure that they complied with the conditions of release and did not re-offend. As such, it was important that he maintained the respect of the offenders placed under his supervision and also the confidence of the public in general and victims of sex crime in particular.
The Court also suggested that the Applicant may have been correct to suggest that the activities depicted on Roissy’s website were increasingly accepted and understood in British mainstream society, nonetheless the national authorities had not exceeded their margin of appreciation in adopting a cautious approach to the question of the impact the Applicant’s activities might have on his ability to effectively carry out his duties. 

 

Finally the Court noted that although it might have been open to the LPS to consider other measures short of dismissal, the Applicant had refused to alter his connection with Roissy, and the dismissal was because of his failure to curb even those parts of his activities most likely to enter the public domain, it was a proportionate measure. The Applicant’s complaint under Article 8 was therefore rejected. 

 

Article 10

 

The Court considered that Article 10 was engaged by the Claimant’s dismissal, in that the applicant was dismissed as a consequence of his expression of aspects of his sexual identity. However it considered the interference was proportionate, for the reasons set out in relation to Article 8. 

 

 

Article 13

 

The applicant submitted that he was deprived of an effective national remedy, contrary to Article 13 of the Convention.

 

In the applicant’s contention, the domestic courts were unable to afford a degree of review sufficient to examine the legality of the actions of the LPS in dismissing him, primarily because he was unable to dispute the factual basis upon which the LPS purported to base his dismissal and unable to establish that his activities with Roissy were neither incompatible with his role as a probation officer nor likely to bring the LPS into disrepute.

 

The Court recalled that Article 13 requires a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention. Given its findings that the Applicant’s complaints under Articles 8 and 10 of the Convention are manifestly ill-founded, the Court did not consider that Article 13 is applicable.

 

 

Article 14 

 

Finally, the applicant complained that he was the victim of discrimination, because of his sexual identity, in the exercise of his rights under Articles 8 and 10 of the Convention, in breach of Article 14, which provides:

 

The Court noted that for the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. 

 

The applicant in the present case was not dismissed because of his sexual orientation as such, but because of concerns that knowledge of his participation in BDSM nightclub performances would come more fully into the knowledge of the general public and hinder the effectiveness of his work with sex offenders. In these circumstances, the Court considers that the reasons given for finding that the complaints under Articles 8 or 10 are manifestly ill-founded also afford a reasonable and objective justification under Article 14. 

 

 

 

Summary

A probation officer involved in the treatment of sex offenders was dismissed as a result of his connection with an organisation involved in bondage, domination and sadomasochism and an associated websited. His activities took place in a club which was open to the public.  His dismissal engaged both Article 8 and Article 10 but was a proportionate measure in the circumstances. His complaint about the length of the proceedings, the availability of an adequate domestic remedy and discriminatory treatment under Articles 6, 13 and 14 respectively were all dismissed. 

 

Background

The Applicant worked for Lancashire Probation Service (“LPS”). He was involved in the treatment of sex offenders. In 1999 it came to the attention of LPS that the applicant was a member and director of an organisation (“Roissy”) which advertised its services on the internet as a supplier of products connected with bondage, domination and sadomasochism (“BDSM”) and organisers of BDSM events and performances. 

 

LPS investigated and discovered that that Roissy was registered at the applicant’s home address, and that the website contained links to a number of BDSM websites including one known as “Birmingham Bizarre” which advertised various events and included photographs of the applicants and others, semi-naked, performing acts which the text indicated had taken place at a local private member’s club and involved male domination over submissive women. 

 

Following an investigation LPS instigated disciplinary proceedings against the applicant and he was dismissed on 23 October 2000. The disciplinary panel accepted that the activities were not contrary to the criminal law but nonetheless, given the nature of the acts shown in the photographs and referred to in Roissy’s advertisements, the fact that the material was in the public domain was incompatible with his position as a probation officer, particularly given his work with sex offenders. They held that the Probation Services had a responsibility to maintain public confidence in the integrity of its officers and that public knowledge of the applicant’s activities would damage the reputation of the service.

The applicant appealed unsuccessfully against the dismissal. He commenced proceedings in the ET in February 2001. The ET found the dismissal to be fair and considered that Article 8 was not engaged because the activities in question were in the public domain and did not therefore form part of the applicant’s private life.  The ET also found that although Article 10 was engaged, it was not infringed. The work of LPS was sensitive and it was not incompatible with Article 10 to place some limitation on a probation officer’s freedom of expression. The applicant’s  appeal to the EAT was unsuccessful. 
The applicant then appealed to the Court of Appeal. In the course of his Appeal the Court of Appeal’s judgement in  EWCA Civ 662 was issued. As a result of that decision the Applicant’s appeal to the Court of Appeal was ultimately refused on the basis that since the Applicant’s activities took place in public there had been in effect a waiver of the Applicant’s privacy.

 

The applicant complained to the EctHR on the following grounds:-

 

under Articles 8 and 10 of the Convention, that his dismissal constituted a disproportionate interference respectively with his right to respect for his private life and his right to freedom of expression. 

Under Article 6, in relation to the length of the proceedings

Under Article 13 that he was denied an effective remedy because the jurisdiction of the EAT was confined to questions of law; and

Under Article 14 together with Articles 8 and 10 that he was subjected to differential treatment because of his sexual orientation. 

 

Article 8

The applicant submitted that his activities fell within the scope of “private life”, since they were an important part of his sexual expression and sexual orientation. His performances took place in a private club, to which access was limited. The applicant had not sought to communicate his activities to a wider public. The mere fact that his activities did not take place in an entirely private forum could not be sufficient to constitute a waiver of his Article 8 rights. Nor was the fact that Roissy was a commercial enterprise sufficient to bring his activities outside the scope of Article 8.

 

He did not dispute that his dismissal was lawful, and that the interference with his rights under Article 8 was in pursuit of a legitimate aim – namely the protection of the reputation of the LPS.

 

He argued that as a public authority, the right of the LPS to protect its reputation was limited by the requirement to take into account the overall aims of the Convention which included broadmindedness and tolerance as hallmarks of a democratic society.

 

Finally, in the applicant’s view, the decision to dismiss him was not proportionate since the LPS did not pursue alternatives, such as asking him to cease his performances or end his involvement with Roissy.

 

The EctHR held that private life is a broad term not susceptible to exhaustive definition. It extends to the right to establish relationships with others in the outside world, and there there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life. A person’s reasonable expectation of privacy may be a relevant but not necessarily conclusive factor.

 

In this case the applicant’s activities took place in a nightclub frequented by a self-selecting group of like-minded individuals. Photos of him which appeared on the website were anonymised. In the circumstances the Court was prepared to proceed on the assumption that Article 8 was engaged. 

 

On that basis his dismissal for activities which fell within the scope of Article 8 amounted to an interference with his rights under that Article. 

 

In assessing whether the dismissal was proportionate the Court noted that dismissal of a speciliased public servant was a very severe measure because of the impact it would have on his ability to find work in the field in which he was trained. 

 

The Court also noted that an employee owes his employer a duty of loyalty, reserve and discretion. In the present case the applicant’s job involved, inter alia, working closely with convicted sex offenders who had been released from prison, to ensure that they complied with the conditions of release and did not re-offend. As such, it was important that he maintained the respect of the offenders placed under his supervision and also the confidence of the public in general and victims of sex crime in particular.
The Court also suggested that the Applicant may have been correct to suggest that the activities depicted on Roissy’s website were increasingly accepted and understood in British mainstream society, nonetheless the national authorities had not exceeded their margin of appreciation in adopting a cautious approach to the question of the impact the Applicant’s activities might have on his ability to effectively carry out his duties. 

 

Finally the Court noted that although it might have been open to the LPS to consider other measures short of dismissal, the Applicant had refused to alter his connection with Roissy, and the dismissal was because of his failure to curb even those parts of his activities most likely to enter the public domain, it was a proportionate measure. The Applicant’s complaint under Article 8 was therefore rejected. 

 

Article 10

The Court considered that Article 10 was engaged by the Claimant’s dismissal, in that the applicant was dismissed as a consequence of his expression of aspects of his sexual identity. However it considered the interference was proportionate, for the reasons set out in relation to Article 8. 

 

 

Article 13

The applicant submitted that he was deprived of an effective national remedy, contrary to Article 13 of the Convention.

 

In the applicant’s contention, the domestic courts were unable to afford a degree of review sufficient to examine the legality of the actions of the LPS in dismissing him, primarily because he was unable to dispute the factual basis upon which the LPS purported to base his dismissal and unable to establish that his activities with Roissy were neither incompatible with his role as a probation officer nor likely to bring the LPS into disrepute.

 

The Court recalled that Article 13 requires a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention. Given its findings that the Applicant’s complaints under Articles 8 and 10 of the Convention are manifestly ill-founded, the Court did not consider that Article 13 is applicable.

 

Article 14 

Finally, the applicant complained that he was the victim of discrimination, because of his sexual identity, in the exercise of his rights under Articles 8 and 10 of the Convention, in breach of Article 14, which provides:

 

The Court noted that for the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. 

 

The applicant in the present case was not dismissed because of his sexual orientation as such, but because of concerns that knowledge of his participation in BDSM nightclub performances would come more fully into the knowledge of the general public and hinder the effectiveness of his work with sex offenders. In these circumstances, the Court considers that the reasons given for finding that the complaints under Articles 8 or 10 are manifestly ill-founded also afford a reasonable and objective justification under Article 14. 

 

Application no 32792/05

This case is available to read here

Art. 06 Right to a Fair Trial, Art. 08 Right to Private and Family Life, Art. 10 Freedom of Expression, Art. 13 Effective Remedy, Art. 14 Prohibition of Discrimination, Discrimination Law, Employment and Industrial Relations Law