Introduction

The EAT upheld an Employment Tribunal (ET) decision that the dismissal of a Probation Service Officer, on the ground that she failed to disclose that her child was subject to a Child Protection Plan, was fair. The EAT noted that, while the Claimant's Article 8 right (ECHR) had to be taken into account, there was no unjustified or disproportionate infringement in this case. 

Background

The Claimant, Q, was employed as a Probation Service Officer (PSO) for the Probation Service (the Respondent), and had been in this position since 1994. In 2014, there was an incident at the Claimant's home involving her, her partner and her teenage daughter. It was alleged that the Claimant had been violent towards her daughter. The Claimant vehemently denied this allegation. Following this, social services decided to place the Claimant's daughter on the Child Protection Register (CPR) and made her subject to a Child Protection Plan (CPP). 

The Claimant was advised by social services to tell her employer about the incident. The Claimant did not follow this advice and, as a result, social services informed the Respondent directly. 

On being informed of the situation, the Respondent instituted disciplinary proceedings. These concluded that the Claimant, in failing to report the allegations, had committed gross misconduct. The Respondent issued the Claimant with a final written warning and demoted the Claimant to the role of Case Administrator. 

In February 2015, the Claimant informed H, a senior manager, that her daughter was no longer on the CPR or subject to a CPP. At this point, the Claimant was instructed to keep H and her line manager up to date with any relevant developments. 

In March 2015, another violent incident occurred between the Claimant and her daughter. This incident resulted in the Claimant being visited by a social worker and police officer. Q, the Claimant, informed H of this, but failed to inform her line manager. Q also failed to disclose to either that her daughter was subject to a new CPP, imposed because social services believed the Claimant posed a risk to her daughter. When this came to light, a new disciplinary process took place and resulted in the Claimant being dismissed. 

The Respondent justified the decision to dismiss the Claimant because of her failure to disclose that her daughter was subject to a new CPP, and her refusal to engage with social services, a key statutory partner of the Respondent and of Q in her role as a PSO, in a constructive manner, which they feared would bring the reputation of the service into disrepute. 

Decision

Q brought an unfair dismissal claim to the ET but this was rejected. The ET held that, in the circumstances, it was reasonable for the Respondent to dismiss the Claimant. 

The ET found that the Claimant was aware that she was expected to inform the Respondent of the second situation, given that she had previously been issued with a final written warning. In addition, given a PSO's role in the criminal justice system, it was reasonable for the Respondent to expect high standards from the Claimant and, while the Claimant's Article 8 right (the right to respect for private and family life under the European Convention on Human Rights (ECHR)) was engaged, the dismissal was a proportionate interference with that right. 

The Claimant appealed to the EAT. She argued that the ET had erred when finding that there had been a proportionate interference with her Article 8 right. 

The EAT held that, although the interference with the Claimant's private life was significant, the ET had properly considered the extent of that interference. The Claimant was aware that she was required to inform her employer of any further issues between her and a family member in which social services were involved. 

The Respondent did not require the Claimant to reveal every detail of what was going on in relation to her daughter. Instead, they legitimately requested sufficient information to establish whether any further incident was a cause for concern. The EAT also found that the fact that the Claimant was required to provide information regarding the ongoing situation with her daughter, as part of the implied duties of her contract of employment underpinned by the PSO's applicable codes and standards, was sufficient to demonstrate that the interference was "prescribed by law". 

The EAT went on to dismiss the Claimant's argument that the interference was also disproportionate on the grounds that her conduct was not in the public domain and that it would not become public knowledge.

The EAT concluded that the Respondent had a legitimate aim in safeguarding its reputation. The Respondent could not ignore the Claimant's failure to disclose that her daughter was subject to a new CPP or view her actions as irrelevant. The Claimant had knowingly withheld information that she knew should be disclosed. The Respondent was justified in taking this into account, along with the Claimant's failure to engage with social services and her decision to ignore the instructions that were set out in the written warning. These were all factors that could raise concerns about her professionalism, thus damaging the reputation of the Probation Service. 

Comment

This case highlights that it is for an ET to come to its own determination on whether or not a dismissal involves a disproportionate and unjustified interference with ECHR rights. It also provides guidance as to when an employer's interference with an employee's Article 8 right can be justified. 

However, this case involved a claimant with an unusual job, namely a Probation Officer. Given the specific nature of that role, it is important to recognise that the ruling will not necessarily assist employers with employees in more regular jobs.