Facts of the case
The Claimant had been employed by the Probation Service as a Probationary Service Officer since 1994. In 2014, it was alleged that she had been violent towards her daughter at home. The Claimant strongly denied this but social services became involved and the Claimant’s daughter was eventually placed on the Child Protection Register.
The Claimant was advised by social services to inform her employer of the incident given her role and the safeguarding implications for her job. However, the Claimant failed to do so. Social services took it upon themselves to inform the Claimant’s employer of what had happened and the Claimant was subjected to disciplinary proceedings. The Probation Service found that the Claimant had committed an act of gross misconduct in failing to keep them informed of the incident and she was given a final written warning and demoted to the role of Case Administrator.
The Claimant’s daughter was subsequently removed from the Child Protection Register and the Claimant informed a senior manager of that. However, only one month later in March 2015, another incident took place between the Claimant and her daughter which resulted in them being visited by the Police and a social worker. The Claimant informed the same senior manager of what had happened but did not inform him that her daughter was subject to a newly-imposed Child Protection Plan and the fact that the reason for this was because of the alleged risk she posed to her daughter.
The senior manager later learned of the Child Protection Plan and the Claimant was subjected to further disciplinary proceedings and dismissed on the grounds that she had failed to inform them that her daughter had been made the subject of a Child Protection Plan and the potential impact of that on the Probation Service’s reputation.
The Claimant brought a claim in the Employment Tribunal for unfair dismissal against the Probation Service.
Decision – Employment Tribunal
The Employment Tribunal rejected the Claimant’s claim and found that she had been fairly dismissed. They found that the Probation Service’s decision to dismiss was reasonable in the circumstances, particularly as the Claimant had already been issued with a final written warning in almost identical circumstances and was therefore well aware of her obligation to keep her employer informed of any further issues where social services were involved.
The Employment Tribunal acknowledged that the Claimant had the right to a private life under Article 8 of the European Convention on Human Rights and that issues surrounding domestic violence, the welfare of her children and interactions with social services had been considered by the Probation Service when deciding to dismiss her.
However, the Employment Tribunal concluded that dismissal was a proportionate interference with that right to a private life given that the Probation Service is part of the criminal justice system and therefore has higher expectations of its employees’ conduct and that the Probation Service is required to work as a statutory partner with social services and ensure that its staff behave in a way which is commensurate with their obligations to the public in terms of safeguarding the vulnerable. If known to the public, the information from the Claimant’s private life could undermine the public confidence in the Probation Service.
The Claimant appealed against the Employment Tribunal’s decision.
Decision – Employment Appeal Tribunal
The Employment Appeal Tribunal (EAT) upheld the Employment Tribunal’s decision that the dismissal had been fair. The EAT ruled that, whilst the Claimant’s right to a private life under Article 8 of the European Convention on Human Rights was required to be taken into account when determining the fairness of the dismissal, there had been no breach of that right on this occasion. The EAT ruled that the Claimant was expressly and impliedly under a duty to disclose information regarding social services’ involvement in private matters and the Probation Service had not required the Claimant to divulge every little detail of those private matters, but was legitimately concerned to know whether anything further had happened which concerned the Claimant’s conduct. The Probation Service needed to safeguard the effective discharge of its functions, in particular by safeguarding its reputation and relations with social services and Local Authorities. This outweighed any interference with the Claimant’s right to a private life.
The EAT also found that where an unfair dismissal claim is brought against a public body, that public employing body (as well as the Employment Tribunal) has a duty to weigh up the impact of the dismissal upon any human rights the employee may have, such as the right to a private life. If imposing the sanction of dismissal involves a disproportionate and unjustified band of reasonable responses and therefore unfair.
Comment
This case will be of particular interest to those in sectors where safeguarding issues are particularly important.
This case highlights the rights employers have to take action when employees do not keep them informed on issues in their private or family life which could have a bearing either on their ability to do their job or the perception or standing of the employer in the public view.
Employers should make sure that their policies clearly set out what employees are required to report to them and give employees regular opportunities to make such reports.
Where an employer has a suspicion that an employee has failed to report a safeguarding matter or similar, they will need to follow their usual investigation and disciplinary process before issuing any sanction.
How Nelsons can help
At Nelsons, our Employment Law and Education teams can provide employers with support when faced with difficult investigation and disciplinary issues, please contact us for more information on 0800 024 1976 or via our online form.