What You Do in Private

A former Probation Officer, who was dismissed because of his involvement outside work in activities that were held to be incompatible with the roles and responsibilities of his job, has failed in his attempt to persuade the European Court of Human Rights that his dismissal was a violation of his right to respect for his private life, under Article 8 of the European Convention on Human Rights, and that it interfered with his right to freedom of expression under Article 10 of the Convention (Pay v United Kingdom).

Mr Pay joined Lancashire Probation Service in 1983. He was involved with the treatment of sex offenders and was well-thought-of by his employer and by the courts for his work. Outside work he was the director of Roissy Workshops, a company which had a website advertising products connected with bondage, domination and sado-masochism, including a dungeon. The website had links to other sites, including one called Birmingham Bizarre Bazaar. Mr Pay also performed at various clubs, including one called ‘Club Lash’.

In 2001, Mr Pay was dismissed by the Probation Service because in its view his involvement in such activities was incompatible with his job as a probation officer and his work with sex offenders. Furthermore, public knowledge of his spare time activities would damage the reputation of the Service.

The Employment Tribunal (ET) concluded that Mr Pay’s dismissal was fair. He had been dismissed for ‘some other substantial reason’ within Section 98(1) of the Employment Rights Act 1996 and the decision to dismiss him was one which a reasonable employer was entitled to take. It went on to find that his right to a private life under the European Convention on Human Rights was not engaged as his activities included performances in public clubs and so were in the public domain. As regards his right to freedom of expression under the Convention, the ET found that although this was engaged, it was not infringed. Mr Pay’s activities were such as to have the potential to damage the reputation of the Probation Service and it was therefore reasonable that such activities should be restricted.

The Employment Appeal Tribunal (EAT) upheld the ET’s judgment. In the EAT’s view, the Probation Service’s response was proportionate in the circumstances and there was no violation of Mr Pay’s human rights.

Mr Pay attempted to get leave to appeal to the Court of Appeal but failed. He therefore complained to the European Court of Human Rights (ECHR) that he had suffered a disproportionate interference with his right to respect for his private life and with his right to freedom of expression.

The ECHR ruled that, “given the sensitive nature of the applicant’s work with sex offenders, the Court does not consider that the national authorities exceeded the margin of appreciation available to them in adopting a cautious approach as regards the extent to which public knowledge of the applicant’s sexual activities could impair his ability effectively to carry out his duties.”

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