If you are threatened with dismissal on BDSM grounds, or have been dismissed, it is quite hard for a layperson to find any practical detailed guidance. Backlash wants to remedy that situation.
Obviously, each case depends on the particular facts. Nor are these pages a substitute for professional specialist advice. But they should provide some clues as to where one stands, or what to do to avoid problems.
BDSMers face a problem with employment law.
The legal test has two limbs: there must be a fair reason and if so, it must be reasonable in all the circumstances for the employer to rely on that reason.
There are grounds termed ‘some other substantial reason’ (SOSR) which is a very broad and vague category, easily covering many BDSM activities.
An employment tribunal has no jurisdiction to hear a free-standing claim that human rights have been breached, but it must interpret unfair dismissal law in such as a way as to be compatible with convention rights.
When it comes to considering the second limb of reasonableness the test (purely in employment law terms) is whether the employer acted within the range of responses of a reasonable employer. This is broad – it allows for one employer to take a less risk averse approach to the circumstances, and another to take a very risk averse stance, and for both to be within the lawful range of responses.
A tribunal cannot substitute its own decision of what was the reasonable stance – that would be an error of law. It has to consider whether the employer’s stance was so unreasonable as to take it outside of the lawful range of responses
If the dismissal breached convention rights it cannot be said to fall within the lawful range of responses.
Legally Bland is a good ‘worked example’ of BDSM and employment in the UK. Over time, these pages will explain what happens. The main stages are:-
- Employers have disciplinary policies
- You are suspended pending, and/or are notified of, an investigation
- A 'preliminary' meeting occurs to decide if a formal process is necessary
- If it is, a Hearing is conducted by the employer and a decision made
- If sacked an Appeal can be made within the employer
- If dismissal is upheld, a case can be taken to an Employment Tribunal
- If the employer's decision is upheld, the next stage is an Employment Appeal Tribunal
- Cases can then move to the normal courts, like the Court of Appeal and Supreme Court
- Finally, cases can go to the European Court of Human Rights
The only BDSM case to date to have gone through all these stages is Pay v UK.
Bear in mind also some other factors.
If the Police were involved originally, will the incident appear on a future CRB or enhanced CRB report? Those decisions can be challenged on various grounds to the relevant police force, to the CRB itself, or if those fail, by application for Judicial Review. The CRB is now the Disclosure and Barring Service, or DBS.
Costs in employment courts are met by each party, they are not usually awarded against one or the other. This means that if you play at BDSM and work in a sensitive field or for a sensitive employer, it is well worthwhile considering either belonging to a union or have some kind of legal costs insurance.
Costs in conventional courts, which includes JR, can be legal aided. Legal aid conditions vary over time so check with the government website.
An employer can always just sack you regardless and meet the costs of any award. This would probably he handled via mediation, a step the ET require be considered.