26 September 2007
by Laurence PAY
against the United Kingdom
lodged on 6 September 2005
STATEMENT OF FACTS
The applicant, Mr Laurence Pay, is a British national who was born in 1951 and lives in Kirkham. He is represented before the Court by Mr J. Welch of Liberty, a non-governmental organisation based in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant joined the Lancashire Probation Service (“LPS”) in 1983. He quickly became involved in the treatment of sex offenders and was well regarded by his employers and the courts in respect of this work.
In October 1999, probation officers were sent a form in which they were asked to declare whether or not they were freemasons. The applicant stated that he was not a mason but listed a number of other organisations of which he was a member, including “The House of Roissy”. This organisation subsequently became “Roissy Workshops Ltd” (hereafter, “Roissy”), of which the applicant was a director.
On 25 July 2000 Lancashire Police received an anonymous fax, in which it was claimed inter alia that Roissy advertised its services on the internet as the builder and supplier of products connected with bondage, domination and sado-masochism (“BDSM”) and the organiser of BDSM events and performances. The fax included a photograph of Mr Pay with two semi naked women.
On 27 July 2000 the fax was sent by a police officer to one of the applicant's colleagues, who brought it to the attention of LPS senior management. LPS undertook an investigation, and found that Roissy was registered at the applicant's address and that its website included links to a number of BDSM websites, including “Birmingham Bizarre”, which advertised various events and included photographs of the applicant and others, semi-naked, performing acts which the accompanying text indicated had taken place at a local private members' club and involved male domination over submissive women.
The applicant was immediately suspended on full pay, on the ground that LPS had reason to believe that the above activities might be incompatible with his role as a probation officer and bring LPS into disrepute. The applicant admitted that he was involved in the performance aspect of Roissy's activities but claimed that he had never authorised photographs of himself of the type included in the fax to be published on the internet and that the owners of the “Birmingham Bizarre” website had now removed the photographs at his request. Although the LPS official carrying out the investigation considered that the photographs were in the nature of soft pornography and depicted acts which were degrading to women, the applicant disagreed.
On 19 September 2000 LPS commenced disciplinary proceedings against him. Following a hearing before the Panel of the Personnel Hearings Sub Committee (“the Panel”) on 19 October 2000, the applicant was formally dismissed on 23 October 2000. The Panel, which accepted that the applicant's activities were not contrary to criminal law, considered, however, that they were fundamentally incompatible with his position as a probation officer, particularly an officer working with sex offenders. They held that the Probation Service had a responsibility to the public to maintain 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's appeal to a differently constituted Panel was dismissed on 8 January 2001. The Panel considered whether the applicant should be given alternative employment within the Probation Service, but took the view that such a proposal would be inappropriate given the conclusion that his activities had been found to be incompatible with the role of any probation officer.
The applicant challenged this decision by way of an appeal to the Employment Tribunal (“ET”). At the hearing before the ET, where he was represented by a barrister acting pro bono, the applicant submitted that he had made no secret of his activities with Roissy, which he did not consider to be of a nature to bring LPS into disrepute. He also pointed out that he had never been asked to modify his private activities and that if he had been asked by LPS to give up the company he would have done so.
The ET in its judgment of 8 August 2002 stated that it had:
“... heard from various witnesses of their concern as to the consequences if the applicant's activities came more fully into the knowledge of the general public. There was a concern for the general reputation of the Probation Service but there was equally a concern as to the effect of these activities upon victims of crime and in particular victims of sex crime as well as on offenders who were receiving the help of the Probation Service”.
The ET concluded that the dismissal fell within the range of responses of a reasonable employer. It further concluded that Article 8 of the Convention was not engaged because the activities in question were in the public domain and did not therefore form part of Mr Pay's private life. Article 10 was engaged, but not infringed.
The applicant appealed to the Employment Appeal Tribunal (“EAT”) which dismissed the appeal in a judgment dated 29 October 2003. The EAT found that Article 8 was not applicable, for the reasons given by the ET, and that the dismissal had been proportionate under Article 10. On the issue of delay it commented:
“Something must be said about the delays in this case. The applicant's cause of action arose when he was dismissed on 9 January 2001. He presented an Originating Application on 12 January 2001 and so a period of 19 months elapsed before the Tribunal gave its decision. The Notice of Appeal in its original form was lodged on 18 September 2002 and we are giving judgment over a year later. Without a convincing explanation, these delays would be unacceptable. However, neither party makes any criticism of the other, nor is there any criticism by them of the Employment Tribunal or of the EAT. In those circumstances it is inappropriate for us to add anything.”
On 12 March 2004 the applicant filed notice of an application to seek leave to appeal to the Court of Appeal. This application was filed outside the 14 day time-limit and was rejected on 23 April 2004. He made a renewed application, claiming that the delay had been caused by the fact that legal aid had not been granted until 6 March. On 26 May 2004 the Court of Appeal provisionally granted the applications for leave to appeal and an extension of time, but allowed the respondent LPS 14 days to oppose this order. Lord Justice Sedley observed:
“It seems to me that there is one issue which is capable of engaging the attention of this court. Accepting, as the EAT did, that, in order to be fair, a dismissal has to be Convention compliant ..., it seems to me arguable that, properly appraised, the factors before the Employment Tribunal did not make it proportionate to dismiss Mr Pay, given that the dismissal was held to have been not for incapacity but for some other substantial reason. The substantive reason was, in effect, the damage that would be done to the good name and standing of the Probation Service were it to become public that Mr Pay, working as he did with sex offenders and their victims, was involved in an activity involving bondage and sadomasochism.
The question is not unproblematical. Under Article 8, it is debateable whether this is a matter of private life since the activities were publicised on the internet, but it does seem to me arguable that, to the extent that Mr Pay's own sexual proclivities were in issue, they related to his private life as much as to matters he had publicised.
What perhaps is more important is the proportionality of dismissal in a situation in which the dismissal was prompted not by considerations of personal unsuitability for the job, but by legitimate considerations of adverse publicity which would rebound on the Probation Service.”
Lord Justice Maurice Kay had greater misgivings about the appeal's prospects of success but was prepared to grant leave on the above terms.
The respondent LPS opposed the applications. On 5 November 2004 an identically constituted Court of Appeal issued a supplementary judgment, without the benefit of oral argument, in which it held that in the light of the full Court of Appeal's judgment in X v. Y (see below), it now appeared that the applicant's appeal had no prospect of success and there could therefore be no useful purpose in granting the extension of time.
The applicant made a renewed oral application to the Court of Appeal, which was rejected on 7 March 2005, again because the Court of Appeal considered itself bound by X v. Y.
B. Relevant domestic law
1. Unfair dismissal
Under section 94(1) of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by his employer. By section 98(1), an employer must show a reason for a dismissal falling within a category set out in section 98(2), which includes “conduct” or “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”.
Section 98(4) deals with fairness:
“Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
The case of X v. Y  EWCA Civ 662 concerned unfair dismissal proceedings brought by a private sector employee working with young offenders who had been arrested and cautioned by the police in respect of a sexual offence committed with another man in a public toilet. The Court of Appeal proposed a framework of questions to assist employment tribunals in dealing with Convention issues in unfair dismissal cases between private litigants, but held, on the facts of the case before it, that Article 8 was not engaged, since X was dismissed for conduct which occurred in a place to which the public had access and which was a criminal offence, which was normally a matter of legitimate concern to the public.
2. The Probation Service
Until its repeal on 1 April 2001, the duties and functions of probation officers were regulated by the Probation Service Act 1993. Section 14 provided that:
“It is the duty of probation officers –
(a) to supervise the probationers and other persons placed under their supervision and to advise, assist and befriend them;
(b) with a view to assisting the court in determining the most suitable method of dealing with a person's case, to enquire (in accordance with any direction of the Court) into, and make reports on, his circumstances or home surrounding;
(c) to advise, assist and befriend, in such cases and in such manner as may be prescribed, persons who have been released from custody; and
(d) to perform such other duties as may be prescribed.”
In its judgment in the present case, the EAT observed:
“The modern probation service is a law enforcement agency at the heart of the criminal justice system. It aims to see that offenders receive proper punishment for their offending by the way they are supervised in the community. It works for the effective rehabilitation so they are less likely to offend in the future. Its objectives include Home Office priorities which were to challenge offenders in their behaviour, to enforce community sentences rigorously and to reduce the risk of harm from dangerous offenders. Its responsibilities include the delivery of effective programmes for supervising offenders safely in the community and upholding the interests of the victims of crime.”
The applicant complains 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 § 1 he complains about the length of the domestic proceedings and under Article 13 he complains that, since under section 21 of the Employment Tribunals Act 1996, the jurisdiction of the EAT is confined to questions of law, he was denied an effective domestic remedy because he was unable to dispute the ET's findings of fact before the EAT or Court of Appeal. Finally, under Article 14 combined with Articles 8 and 10 he complains that he has been subjected to differential treatment because of his sexual orientation.
QUESTIONS TO THE PARTIES