A very civil partnership

Photo by Han-Hsing Tu on Unsplash

Love and marriage go together like a horse and carriage to paraphrase the words of the old song from the 1950s …

… but not for much longer in Scotland if the Scottish Government has its way. A new Bill lodged by the Government this week will potentially revolutionise legal unions for heterosexual couples who want commitment but not, critically, in the form of marriage.

The Civil Partnerships Act 2004 was originally passed by the UK Government of Prime Minister Tony Blair in order to permit same sex couples to enter a legally binding relationship. At the time, the Blair Government stressed that this type of legal arrangement was not open to heterosexual couples and should not be regarded as “gay marriage”.

This legislation also extended the same employment benefits that married couples already enjoyed to same sex couples who entered a civil partnership. In relation to the field of employment rights, the Act applies to employment and pension benefits e.g. a concessionary travel scheme and civil partners of an employee will be entitled to take advantage of these if existing provisions permit a heterosexual partner or spouse of an employee to claim these benefits.

In Bull and Another v Preddy and Another [2013] UKSC 73, UK Supreme Court Justice, Baroness Hale made the following remarks about civil partnerships:

“Civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage in United Kingdom law. It was introduced so that same sex couples could voluntarily assume towards one another the same legal responsibilities, and enjoy the same legal rights, as married couples assume and enjoy. It is more than a contract. Like marriage, it is a status, in which some of the terms are prescribed by law, and which has consequences for people other than the couple themselves and for the state.”

Fast forward a decade or so and we now have same sex marriage in Scotland, England and Wales – but not yet Northern Ireland (although the clock may be ticking here on this issue). Admittedly, same sex couples can enter civil partnerships in Northern Ireland, but since the Republic of Ireland made same sex marriage legal in 2015, pressure has been mounting for change in the North.

This means that same sex couples have the option of entering into marriage or civil partnership. This choice is still denied to heterosexual couples – until now, hence the introduction of the Civil Partnership (Scotland) Bill.

Traditional marriage between a man and woman has been criticised on a number of grounds:

• It’s seen as very patriarchal i.e. historically it unduly favours the male partner

• It has religious associations which are not in keeping with the fact that the UK is (in 2019) a much more secular society

• Some heterosexual couples are increasingly attracted to a more equitable and modern form of legal commitment i.e. civil partnership.

Despite these criticisms of traditional marriage, until recently neither the UK or Scottish Governments had shown a desire to extend civil partnerships to heterosexual couples. That is until very recently and a UK Supreme Court decision has now made reform of the institution of marriage and civil partnership essential on the basis of a human rights challenge.

The case which started the ball rolling was Steinfeld and Keidan v Secretary of State for Education [2016].

In Steinfeld and Keidan, an unmarried, heterosexual couple brought a claim for unlawful less favourable treatment against the UK Government on the basis that the law (contained in the Civil Partnership Act 2004) discriminated against them by forcing them to enter marriage as opposed to their preferred option of a civil partnership arrangement. The couple had strong “ideological objections” to marriage (irrespective of whether it took a religious or civil form) and argued, amongst other things, that the failure by the United Kingdom to give them the option of entering a civil partnership was a potential breach of their Article 8 rights (the right to privacy and family life) in terms of the European Convention on Human Rights. The ban on civil partnerships for heterosexual couples was also a potential breach of the Equality Act 2010 in the sense that it represented direct discrimination on grounds of a person’s sexual orientation.

Initially, the English High Court rejected the challenge brought by Steinfeld and Keidan, whereupon the case was allowed to proceed to the English Court of Appeal. Although expressing sympathy for Steinfeld and Keidan’s predicament, the Lord Justices of Appeal refused to overturn the ban.

On 27 June 2018, the Court issued its decision: R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32.

Lord Kerr gave the leading judgement (with which his fellow Justices concurred) and allowed Steinfeld and Keidan’s appeal:

I would allow the appeal and make a declaration that sections 1 and 3 of CPA [Civil Partnership Act 2004] (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.

If, post Steinfeld and Keidan, the Scottish Government continued to allow civil partnership legislation to operate in its original form, there was a very real risk that the Scottish Ministers would be taken to court and challenged by heterosexual couples (using Steinfeld and Keidan [2018]) on human rights grounds.

The solution?

Letting the status quo prevail in Scotland was not an option because of the implications for human rights, so the Scottish Government announced a public consultation on civil partnerships in September 2018:

https://www.bbc.co.uk/news/uk-scotland-45675690

This consultation closed on 21 December 2018 and presented two options:

  • Abolishing the option of future civil partnerships for all; or
  • Permitting heterosexual couples to have the option of marriage or civil partnership.

A link to the Scottish Government’s consultation paper can be found below:

https://consult.gov.scot/family-law/the-future-of-civil-partnership-in-scotland/

On the back of this consultation, the Scottish Government has now introduced the Civil Partnership (Scotland) Bill in order to implement option 2.

As the Policy Memorandum accompanying this Bill clearly states:

In Scotland, couples can marry or enter into a civil partnership, or choose to cohabit. Same sex and mixed sex couples can marry, and same sex and mixed sex couples can decide to cohabit. Civil partnership is currently available only to same sex couples, but this Bill will extend the relationship to mixed sex couples.”

It is more than likely that this Bill will command significant support in the Scottish Parliament and will soon become law.

An info graphic showing the current progress of this Bill can be seen below:

A link to BBC Scotland’s website about the introduction of the Bill can be found below:

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-49889498

Postscript

The Equalities and Human Rights Committee of the Scottish Parliament is now seeking the views of the public about the future of civil partnerships and whether allowing heterosexual couples to enter into this type of legal arrangement is desirable.

Interested members of the public have until 31 January 2020 to submit their views to the Committee.

More information about the Committee’s work in this area can be found by accessing the press release at the link below:

https://www.parliament.scot/newsandmediacentre/113453.aspx

Copyright Seán J Crossan, 4 October & 9 November 2019

I’m not your daddy!

Photo by Annie Spratt on Unsplash

In a previous blog (Who’s the daddy? published on 17 July 2019), I discussed the case of Freddy McConnell, a transgender man who wished to be named as his child’s father on the birth certificate.

Mr McConnell, it will be recalled, had been born female and decided to undergo gender reassignment. While undertaking this process, Mr McConnell discovered that he was pregnant. He eventually gave birth to the child and wished to be designated as the father or parent on the child’s birth certificate.

Sir Andrew McFarlane, President of the English High Court has now issued a ruling regarding this matter (See R (on the application of TT v The Registrar General for England and Wales and Others [2019] EWHC 2348 (Fam)).

As the summary of the High Court’s judgement states:

The issue at the centre of this case can be simply stated: where a person, who was born female, but who has subsequently undergone gender transition and acquired full legal recognition as male, becomes pregnant and gives birth to a child, is that person to be registered as their child’s ‘mother’ or ‘father’?”

Well, the simple answer is that Mr McConnell will not be permitted to insist that he be designated (or named) as the child’s father on the birth certificate.

As Sir Andrew McFarlane clearly stated in his judgement (at paragraph 279):

“… there is a material difference between a person’s gender and their status as a parent. Being a ‘mother’, whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth. It is now medically and legally possible for an individual, whose gender is recognised in law as male, to become pregnant and give birth to their child. Whilst that person’s gender is ‘male’, their parental status, which derives from their biological role in giving birth, is that of ‘mother’.”

Sir Andrew McFarlane also dismissed Mr McConnell’s secondary argument that, if the court decided he could not be designated the child’s mother under English law, then this would represent a breach of Article 8 of the European Convention on Human Rights i.e. the right to private and family life. English law is not incompatible with the European Convention regarding this matter.

Interestingly, however, Sir Andrew did state (at paragraph 125) that this is an area which the UK Government and Parliament may wish to address in the future:

The issue which has most properly and bravely been raised by the Claimant [Mr McConnell] in this Claim is, at its core, a matter of public policy rather than law. It is an important matter of public interest and a proper cause for public debate. Whilst this judgment will seek to determine the issue by reference to the existing legislation and the extant domestic and ECHR caselaw, as these sources do not themselves directly engage with the central question there would seem to be a pressing need for Government and Parliament to address square-on the question of the status of a trans-male who has become pregnant and given birth to a child.”

Links to Sir Andrew McFarlane’s full judgement and the summary of this can be found below:

https://www.judiciary.uk/wp-content/uploads/2019/09/TT-and-YY-APPROVED-Substantive-Judgment-McF-25.9.19.pdf

https://www.judiciary.uk/wp-content/uploads/2019/09/TT-and-YY-Summary.pdf

A link to how the judgement was reported on Sky News can be found below:

http://news.sky.com/story/freddy-mcconnell-transgender-man-who-gave-birth-cannot-be-named-childs-father-11819195

Scotland

As Scotland is a separate legal jurisdiction from England and Wales, the registration of births is primarily governed by the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (as amended).

In Scotland, transgender people can apply to have their birth certificate issued to reflect the fact that they have undergone a process of gender reassignment (as per the terms of the Gender Recognition Act 2004). There is, as yet, no provision in Scots Law for a transgender person who found themselves in Mr McConnell’s position to be designated as the father of a child to which they have physically given birth.

Although an English decision i.e. a persuasive rather than a binding precedent, R (on the application of TT v The Registrar General for England and Wales and Others [2019] EWHC 2348 (Fam) it could be argued that it is likely to be followed by the Scottish courts.

The Scottish Government is, of course, currently carrying out a consultation exercise on changes to the Gender Recognition Act 2004.

See the link to details about this consultation exercise:

https://www2.gov.scot/Topics/Justice/law/17867/gender-recognition-review

Copyright Seán J Crossan, 25 September 2019

Beardy weirdy?

Photo by Nonsap Visuals on Unsplash

A common theme of this Blog over the last few weeks concerns banning certain forms of dress or appearance (Burka bans and horse racing in a hijab published on 1 August 2019).

Imposing a ban in relation to dress codes or appearance can be problematic legally speaking because such an approach could be tantamount to indirect discrimination in terms of Section 19 of the Equality Act 2010.

Several of my previous blogs have addressed the issue of indirect discrimination.

So it was with some interest that I read a story recently about Burger King’s plans to prevent male staff from wearing beards while working in its restaurants throughout the region of Catalunya/Catalonia in Spain. Immediately, I thought about the legal consequences of such a ban being introduced to UK Burger King outlets. The test for indirect discrimination is whether a provision, criterion or policy (PCP) imposed by an organisation is likely to have a disproportionately adverse effect on certain groups of individuals who possess a characteristic protected by law (in the UK, we are primarily talking about the Equality Act).

Unsurprisingly, this attempt to impose a blanket ban on Burger King’s male employees fell foul of the Spanish Constitution’s provisions on equality. I would be prepared to stick my neck out and argue that a similar result would almost certainly be replicated in the UK had Burger King attempted to introduce such a ban. I wasn’t really surprised by this outcome because Spain, as an EU member state, has very similar equality and discrimination laws to the UK. In fact, the current concept of indirect discrimination in the Equality Act 2010 is derived from EU Law.

So, who might be affected if an employer implements a blanket ban on the wearing of beards in the work place? Quite a lot of male employees as it turns out, for example, very religious and observant Jews, Muslims and Sikhs. Furthermore, members of the Russian and Greek Orthodox faith groups and Rastafarians may also face real issues complying with such a requirement imposed by the employer. In short order, such bans may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.

It is always open to an organisation, of course, to argue that dress codes or enforcing strict rules about an individual’s personal appearance can be objectively justified. In the past, banning beards or regulating the length of hairstyles in the work place have been justified successfully by employers or organisations on health and safety grounds i.e. primarily concerning hygiene (see Singh v Rowntree Mackintosh (1979) ICR 554 and Panesar v Nestle Co Ltd [1980] IRLR 64 CA).

Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.

Recently, the Royal Air Force (RAF) has significantly relaxed its total ban on male service personnel wearing beards (moustaches were permitted). This change of heart by the RAF has been motivated by the realisation that individuals from ethnic and religious minorities were being actively deterred from applying to join the service because of the ban on beards.

Even the argument that beards are unhygienic is being undermined with Professor Michael Moseley, presenter of the BBC programme “Trust Me I’m a Doctor“, highlighting recent, scientific evidence that clean shaven men represent a greater threat to hygiene than their bearded counterparts.

Links to the stories on Burger King’s attempt to ban the beard, the RAF’s change of policy and whether beards are actually unhygienic can be found below:

https://www.theguardian.com/world/2019/jul/31/burger-king-beard-ban-infringes-workers-rights-says-catalonia

https://www.bbc.co.uk/news/uk-49313406

https://www.bbc.co.uk/news/magazine-35350886

Copyright Seán J Crossan, 16 August 2019

I’m a prisoner, I want to vote!

Photo by kyryll ushakov on Unsplash

In one of my first blogs (The problem with human rights … published on 1 February 2019), I discussed the problematic nature of this area – especially when individuals who have been less than law abiding, upright citizens are attempting to argue that they deserve to have their human rights respected.

In that previous blog, I focused on people such as John Hirst (convicted for manslaughter in England); Abu Qatada (a radical Islamic preacher who promoted Jihad); and Anders Brevik (the Norwegian mass murderer); who had all pursued legal actions in terms of the European Convention on Human Rights.

See:

  •  Hirst v United Kingdom (No. 2) (2005) ECHR 681
  •  Othman (Abu Qatada) vUK (Application No. 8139/09) 12 January 2012
  • Hansen (formerly known as Anders Breivik) v Norway (Application No. 48852/17) 26 June 2018)

As I often remark to my students, people such as those listed above are not ideal ‘poster boys’ if you were going to run a marketing campaign to promote greater awareness of human rights in Scotland.

This year (in Scotland) marks the twentieth anniversary of the implementation of the European Convention via the Scotland Act 1998 (in 2000, the Convention was further implemented across the UK as a result of the introduction of the Human Rights Act 1998).

I doubt very much that supporters of the system of human rights protection will wish to dwell too long on those difficult cases involving murderers, terrorists, paedophiles etc. It rather tends to undermine the whole basis of human rights or, in other words, it’s a very difficult sell.

Yet the difficult cases keep on coming and certainly make this area a constant source of fascinating debate and argument about the rights and wrongs of human rights. They also tend to drive home very forcefully the notion that human rights is a contested concept. Not everyone agrees what should be protected or who should be protected.

In 2000, the former Scottish judge, Lord McCluskey was highly critical of the introduction of human rights to the legal system. As far back as 1986, he had made the following remarks (in his Reith Lectures) about Canada implementing its Charter of Rights and Freedoms, which was based on the European Convention. In his opinion, this would lead to:

a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers.

His Lordship would make the point that the above remarks applied equally to the then Labour Government’s decision to implement the European Convention directly into the legal systems of the United Kingdom.

Whether Lord McCluskey came to regret making these remarks publicly, we can only speculate. They did, however, come back to haunt him when counsel for a number of appellants before the Appeal Court of the High Court of Justiciary argued that Lord McCluskey (and his fellow judges) should be removed from further participation in an appeal which relied very heavily on human rights arguments, in particular, the right to a fair trial under Article 6 of the Convention (see Hoekstra & Others v Her Majesty’s Advocate [2000] ScotHC 11).

John Hirst

When Andrew Neil, the well known journalist, questioned John Hirst about prisoners being given the right to vote in elections being held in the UK, he was less than subtle when he ran through Hirst’s charge sheet on the BBC’s Daily Politics Show in 2010.

Even instinctive supporters of human rights would have found it very difficult (emotionally speaking) to sympathise with Hirst’s position that the right to vote is a human right and this should be extended to those serving prison sentences.

If you want to be reminded of how awkward an interview this was, please click on the link below:

A persistent problem

The spark ignited by John Hirst smoulders on. Amazingly, we are still talking about the issue in 2019. Last month, the European Court of Human Rights (not to be confused with the EU’s Court of Justice), ruled against the UK for failure to implement its earlier decisions which came down firmly on the side of prisoners. Although the UK was found to be in breach of the European Convention, the European Court of Human Rights decided not to award compensation to those prisoners who brought the claim.

The case in question is Miller & Others v UK 11 April 2019 (Application No 70571/14) and the European Court of Human Rights is effectively declaring that UK electoral legislation does not comply with the European Convention.

Article 3 of Protocol No. 1 of the European Convention states that the signatories or High Contracting Parties (i.e. those countries, including the UK, which have signed the Convention):

… undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

All of the prisoners involved in this application were alleging that the UK was in breach of the above provision when they were denied the right to vote in one or more of the following elections: the European Parliament elections on 22 May 2014; the elections to the Scottish Parliament on 5 May 2016; and the UK General Election on 8 June 2017. 

Section 3 of the Representation of the People Act 1983 is the relevant legislation in this area. It states that:

A convicted person during the time that he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local government election.”

The above provision is known colloquially as the ‘blanket ban’ i.e. anyone convicted of a crime and imprisoned automatically loses (or forfeits) the right to vote. This is part of the convicted person’s punishment.

A link to the European Court’s judgement in Miller & Others v UK can be found below:

https://hudoc.echr.coe.int/tur#%22itemid%22:%5B%22001-192216%22%5D

As the supreme legislative body of the United Kingdom, it is up to the Westminster Parliament to rectify this situation – if it so chooses.

A political fudge

Since John Hirst won his case in 2005, successive UK Governments and Parliaments have fudged the issue. This whole area is a political hot potato because many politicians (irrespective of Party allegiance) are well aware of the dangers of standing up for the rights of prisoners. If advertising executives find it difficult to promote human rights using the inhabitants of UK prisons as exemplars, think how much more difficult it would be for politicians. They are extremely risk averse in these days of electoral volatility and they most certainly do not want to put their heads above the parapet to campaign for the rights of prisoners to be upheld. I suspect that many politicians would rather give a straight answer regarding their position raising taxes or cutting vital public services in order to avoid this particular, poisoned chalice.

Most politicians seeking re-election would not wish their opponents to level an accusation against them that they were soft on crime. Expect this story to keep on running.

Conclusion 

We have been well aware for some time that the so called blanket ban on serving prisoners being denied the right to vote is a breach of the European Convention. Put simply, this provision in the Representation of the People Act 1983 is incompatible with the UK’s obligation to uphold and protect human rights.

The consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the UK Supreme Court’s decision in R (Nicklinson) Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

Copyright Seán J Crossan, 1 May 2019

Food for thought?

Photo by Nick Fewings on Unsplash

The area of human rights law is constantly developing. As I discussed in an earlier blog (The problem with human rights published on 1 February 2019), human rights can be a contested concept e.g. the ongoing, divisive debate over whether to grant greater access to abortion in Northern Ireland.

When I ask students what human rights are, some will reply that the right to food should be a legal entitlement in Scotland. Admittedly, Article 2 the European Convention on Human Rights (as incorporated via the Scotland Act 1998 and the Human Rights Act 1998) protects the right to life and it could be argued that this vital right and the right to food security are intimately connected.

This is a particularly sensitive issue: in April 2018, a report in The Scotsman newspaper stated that the use of foodbanks in Scotland had risen dramatically. A link to this article can be found below:

https://www.scotsman.com/news/politics/use-of-food-banks-in-scotland-hits-record-high-1-4729188

Interestingly, the Scottish Human Rights Commission has submitted a report to the Scottish Government making an argument for greater food security. The Commission wants Scots Law to grant people an explicit entitlement to food security and, in this way, Scotland will be well on the path to becoming a good food nation in accordance with principles laid down by the United Nations.

A link to the Commission’s Report can be found below:

http://www.scottishhumanrights.com/news/change-the-law-to-protect-the-right-to-food-for-all/

Food for thought indeed!

Copyright Seán J Crossan, 16 April 2019

Private Enterprise or Public Service?

Photo by Matthew Ansley on Unsplash

The provisions of the European Convention on Human Rights (as implemented by the Human Rights Act 1998 and the Scotland Act 1998) are only enforceable against the British State or its institutions and organisations that carry out public functions, for example, universities, care homes, colleges, hospitals, housing associations, schools and local authorities.

It should be noted that a public authority or emanation of the State can have a very wide meaning in law and may cover privatized utilities companies (see Case C-188/89 Foster v British Gas [1990] 3 ALL ER 897 and Griffin v South West Water Services Ltd [1995] IRLR 15) and other private contractors delivering public services.

A recent example of a private sector company falling foul of human rights legislation occurred in the following English High Court judgement: Between LW; Samantha Faulder; KT; MC v 1) Sodexho Limited and 2) Minister of Justice[2019] EWHC 367.

The facts of the case are as follows:

Her Majesty’s Prison Peterborough is run by Sodexho, a private company, but the UK Government’s Ministry of Justice is ultimately responsible for the running of the institution. The case arose because four inmates at the prison alleged that, in 2017, they had been subjected to strip searches which had breached their human rights, namely:

Article 3 – prohibition of torture and cruel and degrading treatment

Article 8 – the right to respect for private and family life

The English Court of Appeal had ruled in a previous decision – R (LD, RH and BK) v Secretary of State for Justice [2014] EWHC 3517 – that strip searches could represent breaches of Articles 3 and 8. In the present case, however, the High Court stated that there was no conclusive evidence that the strip searches represented a breach of Article 3. That said, the manner of the searches did represent a breach of Article 8.

Conclusion

This ruling is a salutary warning to private contractors carrying out public service contracts that they must be aware of human rights considerations. Companies such as Sodexho, Group 4 and Serco are and have all been involved in carrying out contracts in relation to the criminal justice system whether running prisons or transporting prisoners to and from court hearings. Ultimately, the (Scottish or the UK) Government will have responsibility for the manner in which operations are conducted by these companies because the contracts are deemed to benefit the public in the wider sense.

A link to the High Court’s judgement can be found below:

https://www.bailii.org/ew/cases/EWHC/Admin/2019/367.html

The case was widely reported in the UK media and a link to the story on the BBC website can be found below:

https://www.bbc.co.uk/news/uk-england-cambridgeshire-47334760

Copyright – Seán J Crossan, 1 March 2019

It happened outside work … (or it’s my private life!)

photo-1432888622747-4eb9a8efeb07.png

Photo by William Iven on Unsplash

In Chapter 6 of Introductory Scots Law, I focus on the conduct of employees (or should I rephrase that and say misconduct?).

Misconduct – especially the most serious examples of bad behaviour in the workplace – might be grounds for a fair dismissal of the employee concerned.

Section 95 of the Employment Rights Act 1995 states that an employment contract could be terminated by the employer by reason of the employee’s conduct. Such a dismissal or termination of contract could be regarded as a fair dismissal (Section 98: ERA 1996).

If procedures are properly followed by the employer when contemplating dismissal as the ultimate disciplinary sanction, it will be very difficult for the employee to dispute this.

It’s very important for an employer to spell out to employees the type of conduct which could justify dismissal. This might usefully be done by having a section in the employee handbook which specifically addresses the issue of misconduct in the workplace. Additionally, a proper induction process for new employees might focus on the types of behaviour which the employer would almost certainly not condone. Regular refresher training for existing and longer term employees could also be very useful and, in bigger organisations, this would be an important function of the Human Resources or Personnel Department. The recent introduction of the EU’s General Data Protection Regulations (GDPR) in May 2018 is a case in point. Existing members of staff who handled personal or confidential data under the previous data regime would almost certainly be required to be brought up to speed about the more serious consequences of breaching the GDPR.

Misconduct outside the workplace

What about misconduct committed by employees outside working hours? There is an enduring myth amongst members of the public that what happens in your private life is no business of your employer’s. This is a very naive view to hold: employee misbehaviour – whether during working hours or outside work – can adversely affect the employment relationship. The employer will argue that misconduct committed outside working hours can have serious reputational consequences for the organisation.

As many individuals have found to their cost, extra curricular activities can lead to dismissal from employment or some other disciplinary sanction (see Pay v Lancashire Probation Service [2004] IRLR 129 where a probation officer who was part of a sado-masochistic circus act in his spare time was deemed to be fairly dismissed). On the other hand, the employer has to be careful and must not be heavy handed (see Redfearn UK [2012]  ECHR 1878 where the employee suffered unlawful discrimination when he was dismissed on the grounds of his political beliefs).

The case law is full of examples of employees getting themselves into trouble outside working hours as a result of alcohol and drugs misuse or committing criminal acts. Some examples can be seen below:

Richardson v City of Bradford Metropolitan Council[1975] IRLR 296 a senior meat inspector employed by the Council lost his claim for unfair dismissal in relation to misconduct committed outside work: he had stolen money from his local rugby club where he held the office of Treasurer. The Council argued successfully that this incident demonstrated a serious lack of integrity on the employee’s part and, thus, made him unsuitable for continuing employment.

Moore v C & A Modes [1981] IRLR 71 the employee in question was a section leader in a retail store. He had been caught shoplifting at another store and his employer decided to dismiss him. The dismissal was fair: the employee’s conduct had undermined his employer’s trust and confidence in him, not to mention the potential damage done to its reputation as a result of his criminal behaviour.

X v Y [2004] EWCA Civ 662 a charity support worker who worked with with young offenders was cautioned by police officers after committing an indecent act with another male in a public toilet at a motorway service station. He was also placed on the Sex Offenders’ Register as a result of receiving the Police caution. The employee had not been honest to the Police when asked questions about his job and, compounding this, he failed to inform his employer about the situation. The employer decided to dismiss this individual and the dismissal was deemed to be fair. The reputational damage which the employer suffered because of the employee’s failure to disclose what had happened was a significant factor here. The English Court of Appeal was of the view that the employee’s right to respect for a private life (on grounds of his sexual orientation) was not relevant here in terms of Article 8 ECHR as the indecent act in question was not of a private nature because it had been performed in a public toilet.

The right to privacy?

In particular, public sector employers or employers which discharge public functions will have to be aware of the consequences of Article 8 of the European Convention on Human Rights – the right to respect for a person’s private and family life. Unwarranted interference in a employee’s private life may cause the employer to find itself in a legal minefield. There can even be implications for free speech or freedom of expression (in terms of Article 10 ECHR) which could lead to an employee taking legal action against the employer (see Smith v Trafford Housing Trust [2012] EWHC 3221).

As a result of the Scotland Act 1998 and the Human Rights Act 1998, which implemented provisions of the ECHR directly into domestic law, the contract of employment is by no means immune from human rights considerations.

Private employers are also not exempt from the effects of the ECHR. They will be indirectly affected: the UK as a signatory to the Convention must ensure that human rights are adequately protected and this will extend to relationships between private individuals e.g. employers and employees.

The problem(s) with social media

In December 2018, Sky News reported that a Dundee United footballer, Jamie Robson had been subjected to disciplinary action for dressing in a racially offensive costume at a private party. Pictures of Mr Robson dressed in the offensive costume were posted on social media:

Dundee United defender Jamie Robson disciplined for blackface fancy dress
http://news.sky.com/story/dundee-united-defender-jamie-robson-disciplined-for-blackface-fancy-dress-11579477

With the explosion in the use of social media, there is now a much greater chance of employees being caught behaving in inappropriate ways or posting offensive comments online. In such an environment, employers will have legitimate concerns about the reputational damage done to their organisations as a result of employee misconduct which becomes widely publicised via social media platforms such as Facebook, Instagram or Whatsapp.

That said, however, we now live in a society where it is much easier for employees to be caught out in terms of misconduct committed outside of working hours. In Chapter 6 of Introductory Scots Law, I considered the implications of two Employment Tribunal judgements in relation to employee use of the popular social media platform, Facebook:

  • Stephens v Halfords plc ET Case No. 1700796/10 3rd November 2010 Torquay ET
  • Preece v JD Wetherspoons plc ET Case No. 2104806/10 18th January 2011 Liverpool ET

In Stephens, the employee was deemed to have been unfairly dismissed and was awarded compensation of over £11,350 (ouch!), whereas in Preece, the circumstances surrounding the employee’s use of social media did constitute grounds for a fair dismissal. Preece had signed the employer’s policy on the use of e-mail and social networking sites which contained the following warning that disciplinary action would be taken if comments were “….. found to lower the reputation of the organisation, staff or customers”.

In a more recent decision, Plant v API Microelectronics Ltd (ET Case No. 3401454/2016) 30th March 2016, the Norwich Employment Tribunal held that an employee’s claims that she had  been unfairly dismissed and wrongfully dismissed regarding “derogatory” remarks (which she had made on Facebook) about her employer had not been proved. Mrs Plant, the employee in question, had been with the company for 17 years and had a spotless disciplinary record.  In December 2015, the employer had introduced a very robust social media which listed the types of online behaviour which could be regarded as misconduct. In particular, employees were reminded that:

In particular, employees were reminded that:

The document also reminds employees that conversations between friends on Facebook are not truly private and can still have the potential to cause damage, reminding employees that comments can be copied forward onto others without the
permission, it stresses the need to not rely on privacy settings.

Furthermore, the Employment Tribunal noted that the new policy stated:

“… that any breach of this policy will be taken seriously and may lead to disciplinary action under the respondent’s disciplinary policy. Serious breaches will be regarded as
gross misconduct and may lead to summary dismissal under the respondent’s disciplinary procedure
.”

The Employment Judge Postle concluded that:

The Claimant [Mrs Plant] was aware of the Policy and one assumes she read it, she must have been aware what was and what was not allowed. The Claimant would have been aware of the consequences if she breached that policy despite this her profile referred to her position within respondents as an operator and dogsbody, it was clearly a description of her job with respondent clear to see it was derogatory and insulting if not to the respondents certainly to her colleagues occupying the same position. There is then that reference to that bloody place and the need to hurry up and sue them and pissing myself laughing. In the absence of an adequate explanation from the Claimant which was sadly lacking the respondents were entitled to believe that these comments were aimed at the respondent. …

I repeat that it might be that one would dismiss and another would not dismiss. It
may be seen as harsh but the respondents taking account of the Claimants long service and clear record nevertheless dismissed for a clear breach of the Policy and that would fall within the range of a reasonable response open to an employer. The dismissal was therefore not unfair and the dismissal was not wrongful
. [my emphasis]”

A link to the full Employment Tribunal judgement can be found below:

https://assets.publishing.service.gov.uk/media/5909db43e5274a06b30002d3/Mrs_E_Plant_v_API_Microelectronics_Limited_3401454.2016.pdf

Bullying and harassment via social media platforms

Social media can also be used by both managers and employees to bully and harass colleagues. In the wake of the #MeToo and Time’s Up movements, employers that ignore allegations of sexual harassment are almost playing with fire if they allow the workplace to become a degrading, humiliating or offensive environment.

Employers should have a clear policy on social media use both within and outwith working hours. Fortunately, organisations such as the Advisory Conciliation and Advice Service (ACAS) are on hand to provide useful guidelines as to employers can develop a coherent social media policy:

http://www.acas.org.uk/index.aspx?articleid=3375

Once the social media policy has been formulated, it will be the responsibility of the employer to ensure that employees are aware of its contents and that they understand the consequences of any breach of the rules contained therein.

It’s my private life!

Another issue for employers to grapple with is the personal use by employees of the internet or telecommunications equipment during working hours. Employers may have very good reasons for monitoring internet use e.g. to assess whether work is actually being done properly and to ensure that employees are not doing anything inappropriate during working hours. That said, there is a balance to be struck between the employer’s legitimate interests and the employee’s right to privacy.

In Chapter 6 of Introductory Scots Law, I discussed the implications of the European Court of Human Rights’ decision in  Bărbulescu v Romania [2016] (Application No 61496/08). It is worth restating the facts of the case:

Bărbulescuthe employee had his contract terminated by his employer because he had used his professional Yahoo Messenger email account to send messages to his brother and his fiancée. The email account had been set up for the express purpose of communication with clients of the employer. This account was not to be used for personal purposes as per the employer’s internal regulations. Furthermore, the employee was informed that communications with clients would be monitored by the employer. The employee argued that his right to privacy under Article 8 of the European Convention on Human Rights had been breached, but his legal action before the Romanian courts was dismissed. Eventually, he took his case to the European Court of Human Rights in Strasbourg.

The Fourth Chamber of the European Court of Human Rights considered the question as to whether Bărbulescu had a legitimate expectation of privacy in relation to use of the email account?: its conclusion was that he did not.

Bărbulescu’s situation was different from two previous decisions of the European Court – Halford v United Kingdom (1997) and Copland v United Kingdom (2007) – where the employers appeared to permit (to a certain extent) employee use of office telephones for personal purposes. A further question pondered by the Fourth Chamber of the Court was that although the employer had forbidden the use of work emails for personal use, did Bărbulescu still have a legitimate expectation that his account was not being monitored? The Fourth Chamber was of the opinion that employers had a legitimate right to check (during working hours) that their employees were fulfilling their job. The employer’s monitoring of Bărbulescu’s email account was far from excessive and satisfied the proportionality test.

Bărbulescu Round 2 (5 September 2017)

Since the Bărbulescu decision in 2016, the Grand Chamber of the European Court of Human Rights has overruled the judgement of the Fourth Chamber of the Court in September 2017.

At the time of the original Bărbulescu decision, I stated that it did not give employers free rein to read the private emails of employees which they had sent using company accounts as some of the British media were reporting (e.g. the BBC; The Telegraph; and The Mirror). The original judgement was not a snoopers’ charter and the moral to be taken from it was that employers had to be very clear as to how they expected employees to behave in relation to facilities like professional email accounts and company telephones (whether landlines or mobiles) and the fact that these may be monitored. An employer who failed to lay down clear guidelines could be running the risk of breaching the duty of trust and confidence and Article 8 (the right to privacy) of the European Convention.

Bărbulescu v Romania [2017] 5 September 2017 the Grand Chamber of the European Court of Human Rights held that the employer had violated Bărbulescu’s Article 8 rights.

What are the implications of the judgement for employees and employers in the UK?

Clearly, the Grand Chamber’s judgement will most obviously be welcomed by employees as bolstering the right to privacy in the workplace.

Contracting States to the European Convention on Human Rights have a positive obligation or duty to ensure that the necessary conditions exist to ensure that there is respect for the individual’s right to privacy in terms of Article 8:

“These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.” [my emphasis]

The European Court of Human Rights did, however, acknowledge that Contracting States to the Convention do enjoy a “wide” margin of appreciation (or discretion) “in assessing the need to establish a legal framework governing the conditions in which an employer may regulate electronic or other communications of a non-professional nature by its employees in the workplace”.

The Grand Chamber went on to note:

“… the Court [the Grand Chamber] is at best concerned with the protection of a core or minimum level of private life and correspondence in the workplace against interference by a private law employer.”

Conclusion

It remains something of an urban myth that employees cannot be disciplined for misconduct committed outside working hours. In extreme cases, the employer will even be entitled to use the nuclear option of dismissal. Each case will turn on its own facts and a key issue to explore will be the impact that the misconduct has on the employment relationship. If out of hours misconduct causes damage to the employer’s reputation e.g. derogatory posts on social media or downright criminal behaviour, these could, in themselves, be compelling reasons for disciplinary action (up to and including dismissal).

It is highly advisable for employers to develop a range of coherent policies which address the issue of misconduct in and outside the workplace and to ensure that employees are aware of these.

The notion that employees have an absolute right to a private life is also questionable. As we have seen, in the Bărbulescu decision, employers should be mindful of minimum rights to privacy, but this does not mean that employees will automatically be able to cry foul if they discover that their internet and telephone use is being monitored in the workplace. Again, employers should ensure that they have policies in place to address this issue clearly and that employees are aware of any rules.

 

Copyright Seán J Crossan, February 2019