In Q v Secretary of State for Justice UKEAT/0120/19 (10 January 2020), the EAT held a probation service officer was fairly dismissed for failing to disclose dealings with social services in a personal capacity.
This case demonstrates the difficulties an employee may face when challenging a dismissal after they have failed to take into account a previous warning.
While the matter relates to a public sector employer, and the employer’s relationship with partner agencies, it is also applicable to private sector employers.
The EAT made it very clear that the employment tribunal must, in deciding whether a dismissal is fair or unfair, come to its own view regarding whether the dismissal involves a disproportionate and unjustified interference with ECHR rights or not.
Facts of the case
Q had been employed by the Probation service as a Probation Service Officer from 2014 until her dismissal in June 2015. In 2014, it was alleged, after an incident at her home, that she had been violent towards her daughter. Q denied the allegations. Social services became involved and Q’s daughter was placed on the Child Protection Register (CPR). Although social services advised Q to tell her employer about the incident, given the safeguarding implications for her job, Q failed to do so and social services raised it with the Probation Service directly.
Upon the employer finding out, disciplinary proceedings were instigated on the basis that Q had failed to report the allegations and as such this was an act of gross misconduct. Q was given a final written warning and demoted to the role of Case Administrator. The decision letter noted concerns about Q’s lack of professional judgment, her lack of acceptance that the onus was on her to report the allegations against her to her manager and the fact that her behaviour had potentially brought the Probation Service into disrepute.
In February 2015, Q informed H, a senior manager, that her daughter was no longer on the CPR and no longer subject to a Child Protection Plan (CPP), as he had been advised to notify her employer of any changes. In March 2015, there was another incident between Q and her daughter. Q informed H of this, but not her line manager. In addition, she did not state that her daughter was subject to a newly-imposed CPP (nor that the reason for the CPP was the alleged risk that Q posed). When H discovered this fact in June 2015, further disciplinary proceedings were initiated and Q was dismissed. Q claimed unfair dismissal.
The Employment Tribunal found that it was reasonable for the Probation Service to dismiss Q given that she already had a final written warning for gross misconduct in almost identical circumstances. It also considered that she was aware of her obligation to inform her employer if there were further issues between her and a family member involving social services. The employment tribunal referred to the fact that the Probation Service is part of the criminal justice system, potentially having higher expectations of its employees’ conduct than employers in other sectors (something reflected in the applicable Probation Service codes of conduct). The employment tribunal accepted that Q’s right to a private and family life under Article 8 of the ECHR was engaged, in that Q’s personal life at home (including issues of domestic violence, the welfare of her children and her interactions with social services) was considered by the Probation Service when dismissing her. However, it concluded that dismissal was a proportionate interference with that right. It was also relevant that the Probation Service is required to work as a statutory partner with social services and to ensure that its staff behave in a way which is consistent with their safeguarding obligations to the public.
Q appealed to the EAT. The EAT dismissed the appeal on all grounds.
The EAT stated that there is an additional legal consequence that applies where an unfair dismissal claim is brought against a public body. The employment tribunal must interpret section 98(4) of the ERA 1996 as requiring it, when deciding whether the employer has acted reasonably or not, to have regard to the impact of dismissal on the employee’s ECHR rights. In the EAT’s view, whether the case involves a public or a private sector employer, the employment tribunal must, in deciding whether the dismissal is fair or unfair, come to its own view as to whether the imposition of the sanction of dismissal involves a disproportionate and unjustified interference with ECHR rights or not. If it does, then this takes the dismissal outside the band of reasonable responses.
In relation to the application of Article 8, the EAT held that the employment tribunal had been permitted to come to the conclusion that it did. It was not that the Probation Service required her to disclose every detail of social services’ involvement in matters involving her daughter. It was instead justifiably concerned to know if there was any further incidents in which Q’s alleged conduct was a cause of concern. The employment tribunal had considered, and found, that the Probation Service’s purpose in imposing this requirement was to protect the effective discharge of its functions, in particular by safeguarding its reputation and relations with local authorities and social services.
The EAT rejected Q’s argument that the interference was disproportionate because her alleged conduct was not in the public domain and there was no real risk of the public getting to know of it. Q had knowingly withheld relevant information that she knew she should disclose. The Probation Service was justified in taking this into account, alongside Q’s failure to engage with social services and her decision to ignore the previous final written warning that had been issued to her. Such actions raised concerns about her professional judgment that could undermine public confidence in the Probation Service.
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