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30 March 2020

229: Probation Service employee who failed to disclose child protection issue fairly dismissed

In Q v Secretary of State for Justice, the EAT has held that a Probation Officer was fairly dismissed for failing to keep her employer fully informed about her interactions with Social Services in relation to the risk that she allegedly posed to her teenage daughter. The EAT also held that whilst the claimant’s right to a private and family life under Article 8 of the European Convention on Human Rights (ECHR) was engaged, her dismissal was justified on the facts of the case.

The claimant (Q) was employed in the Probation Service. Q’s daughter was placed on a child protection register after allegations were made that Q had been violent towards her, although Q disputed this. Despite being warned by Social Services to inform her employer about this, Q did not do so. When Social Services raised the issue with the Probation Service, disciplinary proceedings were commenced. Q received a final written warning for her gross misconduct in failing to report the allegations and was demoted. Some months later, Q failed to report that her daughter was subject to a new child protection plan because of the risk allegedly posed by Q. This led to her dismissal for gross misconduct due to her failure to inform her employer, and the resulting reputational issues for the Probation Service arising out of its statutory partnership with the Social Services.     

The Employment Tribunal rejected Q’s claim of unfair dismissal, finding that her dismissal was reasonable given her previous final written warning for gross misconduct in similar circumstances. Q had also been fully aware of her obligation to inform her employer if there were any further issues between her and a family member involving Social Services. The Tribunal accepted that Q’s right to a private and family life under Article 8 of the ECHR was engaged but concluded that dismissal was a proportionate and justified interference with that right, particularly given that Q’s private life was clearly capable of bringing the Probation Service into disrepute and that Q’s lack of professional judgment could undermine public confidence in it.

In many cases, it would be unfair and potentially discriminatory for employers to require employees to disclose information about their private lives and to dismiss them for failing to do so. However, as this case illustrates, where the employee’s misconduct is directly relevant to their professional role or has consequences for the employer’s reputation, interference with their Article 8 rights may be justified. Particularly in sectors where safeguarding issues are important, employers should ensure that policies set out clearly what must be reported and the consequences of not doing so.

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