The Pay Precedent
Legally Bland sought to establish that people should not be dismissed for private BDSM activities, overturning the decade old leading case, Pay v UK.
This note summarises key points of the Pay saga.
Laurence Pay was a probation officer, employed by the Lancashire Probation Service since 1983. Following a tip off from the police in 2000, the employer learned that in his leisure time Mr Pay performed shows in fetish clubs and was also a director of a company selling products connected with bondage and sadomasochism on the Internet; photographs of him and semi-naked women and men were available online.
Although Mr Pay was well respected in his work for the probation service, his employer considered that his off-duty conduct was incompatible with his professional duties, particularly because he worked with sex offenders. Mr Pay refused to cease his out-of-work activities and was therefore dismissed.
After seven years of litigation, including four trips to the English Court of Appeal, a decision of the European Court of Human Rights (ECtHR) that his case was not admissible to be heard by the ECtHR finally ended Mr Pay’s hopes of a successful claim for unfair dismissal. The ECtHR did not therefore rule on the merits.
The explanation by the ECtHR in Pay v UK actually provides a strong defence of an employee’s right to enjoy his or her private life without an employer being able to curtail activities outside work and working time.
Just because an employer does not approve of what an employee does at weekends on moralistic grounds and worries that it might attract some adverse publicity, that concern does not necessarily mean that it is possible to dismiss the employee fairly.
On the contrary, such a dismissal is likely to be unfair even in cases concerning activities related to the nature of the employee’s job, provided that she cooperates to minimise any risk of adverse publicity for the employer. The fact that the employee’s conduct takes place in public or in a place to which the public have access does not necessarily take it outside the zone of the right to privacy.
Moreover, it emerges that the criminal character of an employee’s off-duty activity does not necessarily remove it from the realm of the right to privacy. The UK courts ‘short answer’ in a leading LGBT employment case X v Y was, it seems, an erroneous answer.
Finally, the decision of the Strasbourg Court demonstrates that the test of justification under Article 8(2) differs from the normal test of reasonableness for unfair dismissal.
The consequence of this is that if the UK courts wish to harmonise their decisions with the ECtHR, they need, first, to reinterpret the right to privacy and, second, to insert a test of proportionality into the law of unfair dismissal when termination of employment interferes with a Convention right.
Summary based on ‘Private Life and Dismissal’ Pay v UK in Ind Law J (2009) 38 (1): 133-138 by Virginia Mantouvalou (Leicester) and Hugh Collins (LSE).
Application No 32792/05, [2009] IRLR 139 (ECtHR)