In January 2012 Backlash decided to support a case before an employment tribunal which sought to establish an important protection for BDSM practitioners.
We funded legal support for a former senior council employee. She was dismissed for engaging in private BDSM activity that had no impact on her work. The grounds for dismissal cited attendance at private BDSM clubs, and the taking of photographic images of private scenes. We soon christened her Legally Bland (LB) because she wished to preserve her anonymity.
The case was successful, and a BDSM practitioner vindicated after being dismissed unfairly from their job. Owing to the employer’s incompetence a binding precedent that could protect many people in a variety of occupations was not set, but the experience should still help others.
In 2011 Backlash was approached by LB who had been arrested and questioned by police about her sexual activities following a complaint from an alcoholic former partner. The partner provided a number of personal images of private BDSM scenes (they did not match any likely definitions of extreme images). The CPS declined to take any further action, and no criminal activity has since been alleged by the police.
However, the individual held a Notifiable Occupation Scheme job as a senior social worker at a council. Notifiable Occupation Scheme jobs include airline pilots & maintenance staff, the Armed Forces, Care Workers, Chiropodists, Civil Servants, Magistrates, NHS, nuclear industry staff & contractors, Paramedics, Pharmacists, Police, Royal Mail staff, Social Workers, Solicitors, Taxi Drivers, Teachers, and Vets.
So LB told the Police they would have to notify her employer, a large local council, of her arrest by. Having established that the employee had attended some fetish clubs (including Club Antichrist), the council decided to dismiss on the grounds that participation in BDSM was a breach of the social workers’ code of conduct and might bring them into disrepute.
Support from General Social Care Council
In these circumstances members of professional bodies face double jepoardy as they are judged separately by both the employer and their regulator.
Following her dismissal, the council formally referred their now former employee to the social work then regulatory body, the General Social Care Council, to decide whether she was fit to engage in social work. This was then the equivalent body to the General Teaching Council or the General Medical Council, which decide who is licensed to teach or practice medicine, and without whose sanction you cannot work in those fields.
The GSCC concluded:
‘An ex partner made allegations of violence against you to the police concerning participation at a small private BDSM club, which the police decided to take no further action following advice received from the Crown Prosecution Service.
The General Social Care Council (GSCC) has reviewed the information received from you and also information received from your employer and decided to take no further action because the allegations do not meet the threshold for misconduct and as such do not call into question your suitability to practice as a Social Worker.
The GSCC has made this decision because it considered the information related to matters concerning your private life outside of work which the GSCC determined are not in the public interest to proceed with.
The GSCC has further not identified any evidence of any risk presented to service users.’
This adjudication in itself is a very helpful outcome. It means that the former employee is free to seek further employment in social work and that their private life has no bearing on their capacity to practise. But the battle was far from over.
The positive decision by the GSCC implies that participation in BDSM, so long as it is done with due discretion, is fully compatible with social care work. This calls into question the council’s decision to dismiss their employee on the grounds of ‘substantial reasons’ in the first place.
The Council played hardball. They rejected mediation, which the court process require them to consider, and downplayed the regulator’s opinion on which they relied so heavily before. Accordingly, over a year later the case progressed to a week long hearing.
Backlash takes the view that if one decides to fight, then fight hard. Accordingly Legally Bland’s employment solicitor, Elizabeth George at Leigh Day, recommended that LB instruct David Massarella as her counsel. The significance of this is that instructed by Liberty David Massarella had represented the claimant in the other leading sexual disrepute (LGBT not BDSM) precedent, X v Y (see the Pay Precedent page in this section) in a landmark Court of Appeal case which set out how Tribunals should apply the Human Rights Act in the Employment Tribunal, exactly the issue at stake for LB.
At the hearing the Council’s counsel, himself a part time employment Employment Tribunal judge, clearly felt honoured to be in such august company. As well he might, because Massarella’s low key but insistent cross examination slowly flushed out the facts including crucial evidence hitherto wrongly not disclosed, to such an extent that by the fourth day the employer’s unreasonable dismissal process meant any judgement on BDSM and human rights became irrelevant.
The search for a precedent continues.