Facts

U represented bus drivers employed by M. Further to a dispute over pay and conditions, U give notice to M in terms of s 226A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRA”) that it intended to hold a ballot for industrial action. Section 226A requires trade unions to provide a minimum level of information within such notices in order to comply with this provision.

U failed to provide M with certain details required under section 226A. In relation to employees who M did not make union deductions for (a process known as “check-off”), U provided the relevant numbers of such employees and relevant lists in relation to these employees as required but failed to provide an explanation as to how the figures had been arrived at by the trade union. U also failed to give M notice of the outcome of the ballot “as soon as reasonably practicable” as was required by section 231A of TULRA.

The ballot was in favour of industrial action and U gave M statutory notice of industrial action as required by s 234A of TULRA. This notice was similarly deficient in not providing information as to how the figures in relation to non-check off employees had been arrived at by the union.

After a 24-hour strike took place, M successfully applied for an injunction against U to prevent further strike action pursuant to the ballot that had taken place. This was granted by the High Court having regard among other matters to the defective notices that had been provided by U.

U appealed to the Court of Appeal arguing inter alia that the statutory requirements in TULRA required to be interpreted in light of Article 11 of the European Convention on Human Rights.

Article 11 provides for the right to “freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests”. This is subject to Article 11(2) which provides for restrictions on this right in certain specified circumstances, where prescribed by law and necessary in a democratic society.

U argued that the statutory requirements imposed by TULRA in relation to pre-ballot notices infringed Article 11 insofar as they went far beyond what could be regarded as necessary in the circumstances to protect the legitimate interests of the employer. It was submitted that the restrictions imposed by the legislation presented obstacles so numerous and so complex that errors became almost inevitable on the part of trade unions.

Held

On the Article 11 appeal point, the Court agreed that the applicable test was whether the statutory restrictions on U’s ability to call a lawful strike were disproportionate. A balance had to be struck between the rights and interests of workers and trade unions on the one hand and those of employers (including their rights under Article 1 of Protocol 1) on the other hand.

The requirement on U to provide M with an explanation of the figures provided in the relevant notices could not be seen as unreasonable, excessively onerous or disproportionate. It was not difficult to comply with. There were legitimate reasons for requiring an explanation, which had been alluded to in the Code of Practice issued by the Secretary of State concerning Industrial Action Ballots and Notice to Employers, relating to the reliability of union membership records. The reason for the information was to allow employers to make preparations for the contingency of strike action.

In this case U had failed to follow the advice of the Code of Practice designed to assist both parties to comply with the statutory provisions. U should also have intimated the outcome of the ballot to M as soon as reasonably practicable. As such, the restrictions were not disproportionate under Article 11 and the provisions did not require to be interpreted differently to comply with section 3 of the Human Rights Act 1998. The appeal would be dismissed.

[2009] IRLR 851

The decision is available here:

This was an appeal from the Employment Appeal Tribunal. A tribunal involving allegations of sexual discrimination, and subject to a restricted reporting order, settled before the evidence was all heard. A journalist asked that the RRO be lifted. The respondents, a law firm, and the individual, B, accused of perpetrating the behaviour complained of, objected that she had no standing to be heard as she wasn’t a party and argued that the tribunal was functus so the RRO was now perpetual.

The Tribunal lifted the RRO, the law firm appealed, the EAT found for the law firm, and the journalist appealed to the Inner House of the Court of Session. The Inner House held that, under the rules in force at the time, she did not need to be party to the proceedings to be heard, but there did need to be proceedings. The tribunal was functus so the journalist lost the appeal.

However, the Inner House also said that “any interference with the right to publish in full what goes on in a Court or tribunal is a serious matter of constitutional significance.” The Court was not determining the respective roles of Arts 6, 8 and 10 in this case, it emphasised, although obviously the consequence of its finding that the tribunal was functus, was that the tribunal was unreportable, so far as identifying individuals was concerned, in perpetuity.

This decision is available to read in full hereFiona Davidson v Dallas McMillan 4 August 2009

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

Bailii Report

In refusing the application for declarator and interdict and for leave to reclaim the Lord Ordinary held that it was not unreasonable for the Chief Constable in the circumstances to have decided to inform the employer having regard to the material before him which suggested the risks that existed towards other children, provided that the letter made it plain that the information was provided in the strictest confidence and should not be disclosed further and that the employer should contact the local divisional commander first if it felt it was necessary to make any further disclosure to protect any individual.

Full report available here.