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How far can employers pry into our private lives?

Human rights law can show new paths for the protection of workers' rights 

Politicians and celebrities endure constant scrutiny of their private lives and sometimes live in fear of the consequences. Any behaviour that could possibly be construed as immoral or deviant can have a devastating effect on their careers. 

But for those of us who do not live in the public eye, what we do in our own time is entirely up to us and has nothing to do with our employers. Or does it?

Virginia Mantouvalou, a guest teacher in human rights at LSE and a member of the School's International Humanitarian Law Project , uses two cases to illustrate how employers can dismiss people who are deemed to have behaved inappropriately in their private lives despite no clear evidence that it has affected the way they do their jobs. She argues that a fresh approach is needed to ensure that employers can dismiss people for outside activities only if there is a definite impact, or a strong likelihood of one, on their work.

In the first case, she tells the story of Mr X who was driving home one wintry Saturday night when he stopped at a transport café to use the toilet. There he met a man with whom he had consensual sex in a cubicle. Unfortunately for them, an undercover policeman came in and arrested them both. Mr X, who later described himself as 'very shocked and frightened', was driven to the police station and put in a cell.  Lovers behind a closed door

He was then interviewed and cautioned for gross indecency. His offence was having homosexual sex in a public place, but he was reassured that no further action would be taken unless he re-offended within five years. However, as is routine in these matters, his name was placed on the Sex Offenders Register.  

Mr X was employed by a charity organising activities for young offenders and when his employer, who had access to the Register, was informed of the offence he was dismissed. 

In a similar case, Laurence Pay performed shows in hedonist and fetish clubs and was also a director of a company selling products connected with bondage and sadomasochism on the internet. There were also photographs of him on the internet performing shows in front of semi-naked women and men.  

When his employers received an anonymous fax tipping them off, he was sacked from his job as a probation officer. Although his private life had no impact on his performance at work, his employers insisted that it was incompatible with his professional duties. 

Both men challenged the legality of their dismissal, claiming that it did not satisfy the test of fairness under the Employment Rights Act 1996. They also introduced a novel human rights argument. Mr Pay contended that his dismissal breached his right to a private life and Mr X alleged that his dismissal constituted a discriminatory interference with his right to privacy. 

The right to privacy did not enjoy special protection until relatively recently when the European Convention on Human Rights was incorporated into domestic law through the 1998 Human Rights Act (HRA). 

Dr Mantouvalou, who is also a Lecturer in Law at the University of Leicester, explains: 'Employment law scholars saw the incorporation of the HRA as a glimmer of light in the obscure area of reasonableness in dismissal.'

Nevertheless, Mr X and Mr Pay both lost their cases after employment appeal tribunals ruled that their conduct had taken place in public, not private, and, in Mr X's case, he had also committed a criminal offence.  

Dr Mantouvalou, whose paper was published in the Modern Law Review, adds: "My position is that private location was erroneously presented as a decisive factor when drawing the boundaries of the right to private life and, more generally, the criterion of public space used by courts was flawed. 

'In Mr X's case, individuals have an expectation of privacy when they use the lavatory, which is very reasonable, a consideration that makes it difficult to agree with the contention that his activities took place in public.'

Dr Mantouvalou argues that the British justice system should take note of a recent ruling by the European Court of Human Rights that Germany violated the right to private life when the German courts rejected a case brought by Caroline, Princess of Monaco. She alleged that publication in the tabloid press of photographs of her and her family taken in public, when they were on holiday, in restaurants and out shopping, constituted a violation of her private life. 

Dr Mantouvalou adds: 'Courts and tribunals in the case of Mr X and Mr Pay were insufficiently appreciative of privacy – a value that ought to be cherished deeply when exploring a person's life after work. 

'Mr Pay's employer opposed his personal choices on moral grounds, which seems to have constituted the primary reason behind his dismissal, for no evidence of adverse impact on his performance or the reputation of the probation service existed. 

'In Mr X's case, we ought to recall that his behaviour was wrongly criminalised – the law discriminated against gay men as it did not criminalise heterosexual acts or those between women. Second, we should not overlook that when exploring the impact of sex life on the employer's reputation the threshold should be set high. Societal prejudice is widespread and the role of human rights law is to protect minorities and vulnerable groups that fall victims of it.' 

She concludes: "Contrary to the view commonly held by labour lawyers in the past, human rights law can show new paths for the protection of workers' rights."


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