One issue that clients often raise is whether they should involve the media when they get into dispute with their (former) employer. My usual response is that it is not helpful to do so. The media has its own agenda and what might seem like a good way of heaping pressure on an employer, can backfire. There’s always more than one side to every story and while it might be gratifying to see the Press door-stepping your former boss, I doubt it is as pleasant when it’s your own doorbell they’re pushing.
There are, of course, legal considerations to well, consider, before getting the Fourth Estate involved. Those issues were well aired in the recent case of Ms C S Hill v Governing Body of Great Tey Primary School. In particular, was her breach of the duty of confidentiality she owed to the school “trumped” by her right to freedom of expression provided by Article 10 of the European Convention of Human Rights (ECHR)?
Firstly, the facts. The Claimant was a mid-day dinner assistant supervising the playground. She came upon a girl pupil who had been tied to some railings in the playground and whipped across her legs with a skipping rope by other pupils, leaving marks. The Claimant released her and reported the incident to the head-teacher. She also reported the incident to the child’s parents after school. That led to her suspension from duty. The Claimant then reported to a local newspaper that she had been suspended for an incident involving a child and the press should contact the child’s parents for details, which they did. According to the Employment Appeal Tribunal’s (EAT) Judgment the case not only made the local press but it also hit the nationals as well.
However, the ET held that she had not disclosed the details to the press for any reason connected with the public interest but through personal antagonism to the head-teacher and to improve her own position. Disciplinary proceedings followed alleging (i) breach of confidentiality by disclosing the events to the girl’s parents and speaking to the local press and (ii) acted in a manner likely to bring the school into disrepute. The Claimant’s dismissal followed.
A claim was duly lodged at the ET alleging the dismissal was prompted by the Claimant’s whistleblowing and that her dismissal had been unfair. The whistleblowing claim was rejected, but the dismissal held to be procedurally unfair and the ET awarded Ms Hill two months’ salary as compensation and held that her conduct meant she was 80% responsible for the dismissal. This was the “Polkey deduction”, which is named after a case of that name to reflect the fact that in many situations although a dismissal may be unfair, the substantive underlying decision to dismiss is correct.
Eventually the case made its way to the EAT with several matters in dispute. One issue was how the ET applied the Polkey deduction to reflect that the employee would have been dismissed in any event had a fair disciplinary/dismissal procedure been followed. The EAT held that the ET had got it wrong and allowed the Claimant’s appeal on that point.
It then came to consider what I thought was the most interesting part of the case, namely the Claimant’s argument that her dismissal breached her right to freedom of expression under Article 10 of the European Convention on Human Rights, which is scheduled to the Human Rights Act 1998.
Article 10 states as follows;
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. (my emphasis)
It should be noted that Article 10 is not an absolute right to freedom of expression as the text in bold above shows. In this case the right of the Claimant to freedom of expression had to be balanced against the interests of protecting the reputation or rights of others or for preventing the disclosure of confidential information.
The EAT was critical of the way the ET had approached the Article 10 issue and set out the way that such issues should be handled in a five step process;
- The ET should ask whether what had occurred could fall within the ambit of freedom of expression
- If so, then A.10(1) must be upheld, unless A.10(2) applies to restrict the right
- To do that requires consideration of the aim which the restriction on free speech sought to serve, as laid out in A.10(2). In this particular case the words in italics were the restrictions in question. In other words, the right to freedom of expression could legitimately be restricted if the reason was to protect the reputation or rights of others or to prevent confidential information being disclosed.
- The restriction or penalty imposed in the light of that aim must be one prescribed by law, e.g. a contractual or common law duty of confidence
- If so then was the restriction or penalty “necessary in a democratic society”; was it proportionate way of achieving the underlying aim?
The EAT took the view that the ET had not applied this test because it used its own “homespun” language and failed to determine the issue of whether the Claimant could lawfully be disciplined for “telling tales out of school”. Consequently the case was remitted back to the ET to determine this particular issue;
“Though we consider that the disciplinary proceedings constituted a restriction upon the Claimant’s freedom of speech, it was open to the school to seek to justify the interference by reference to the legitimate aims of protecting the reputation and rights of others, and preventing the disclosure of information received in confidence. It was open to the Tribunal to conclude that the duty of loyalty owed by the Claimant to the school was such, or her contract of employment and understanding was such, that she had accepted a duty to keep confidential information relating to children. Thus it was open to the Tribunal to conclude that the restriction was prescribed by law; and the conclusion whether it was necessary in a democratic society in pursuance of the legitimate aim which was being considered would involve striking a proper balance between the Claimant’s freedom of expression on the one hand, and the interests sought to be protected on the other, so as to evaluate whether dismissal was a step no greater than necessary in pursuance of the aim. We cannot conclude that that decision would necessarily be that any restriction on the freedom of the Claimant to speak out would render a dismissal unfair: there is much to be said to the opposite effect.”
The answer to “should I involve the press” may not be straightforward and careful consideration should always be given to it. A party to litigation (not just employment cases) needs to keep firmly in mind that the HRA does not provide blanket immunity from further legal action. Proceed with caution!