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February 27th, 2013
A dinner lady told a child's parents that their daughter had been tied to a fence and whipped with a skipping rope by some other pupils, repeated the same to the press and then was dismissed for breach of confidentiality and acting in a manner likely to bring the school into disrepute. An employment tribunal found the dismissal procedurally unfair but dismissed her whistleblowing claim and reduced her compensation for unfair dismissal on the grounds of Polkey and for contributory fault. The tribunal did not, however, determine the question of whether the claimant could lawfully be disciplined for "telling tales out of school" (as it put it).
From these basic facts, and via an appeal against the remedy decision only, has sprung the interesting decision of the EAT (Langstaff J presiding) in Hill v Great Tey Primary School UKEAT/0237/12/SM (judgment here).
The judgment deals with a number of different issues, but fundamentally it concerned the balance to be struck between the school's right to protect confidential information and its reputation, and its duty as a public body to respect the claimant's Article 10 right to freedom of expression.
The EAT criticised the tribunal for having recast the terms of Article 10 in its own "homespun and inaccurate words" when dealing with this issue, and said that the proper approach to be taken in such cases was the following (see para 45):
"(i) to ask whether what had occurred could fall within the ambit of the right to freedom of expression and;
(ii) if so, then to hold that the school as a public body would be bound to respect the exercise of that right, unless it could be qualified by Article 10 (2). That would have involved considering whether the restriction on the right to freedom of expression which was complained of could be justified in accordance with Article 10 (2). Accordingly, the Tribunal would have to;
(iii) identify the aim which the restriction on free speech sought to serve - which must be one or more of the aims expressly set out at 10 (2) ("Interests of National Security" etc.). Here, two aims were potentially legitimate - the protection of the reputation or rights of others, and preventing the disclosure of information received in confidence;
(iv) satisfy itself that the restriction or penalty imposed in the light of that aim was one prescribed by law. That does not mean, in the UK context, that it must be provided for by statute: a common law right will suffice. A contractual term requiring respect for confidential communications would, for instance, be sufficient. So, too, would a common law right to confidentiality;
(v) if so, consider if the restriction or penalty was "necessary in a democratic society". This involves looking to see whether the measure concerned was appropriate to the legitimate aim to which it was said to relate, and that the extent of the interference which it brought to the exercise of the right was no more than proportionate to the importance of the particular aim it sought to serve. This balancing exercise was, in the first place, for the school to perform, or, in the Polkey context, to be considered as if it had performed. However, the test in the present case for the Tribunal is not whether the school would be entitled to take a particular view of the exercise of Article 10 rights but whether that was where the law actually strikes the balance. The Tribunal has to make its own assessment: it does not apply a review test."
The EAT drew the following relevant factors from decisions of the ECtHR:
• the duty owed by employees to their employer of loyalty, reserve and discretion
With regard to the latter, the tribunal in this case had made the finding in its liability decision that it was "incumbent to the position of midday dinner assistant, that you simply do not discuss with third parties what goes on at school between children, save to report it to the head teacher". This finding was the basis for its decision on remedy to make an 80% reduction for contributory fault. Resolving in the claimant's favour an interesting side issue about whether this could be reopened in an appeal against remedy when the liability decision was not appealed, the EAT held that the tribunal had not clearly identified what precisely was confidential about the information that was supplied, nor to whom it was confidential.
However, in a conclusion unsurprisingly overlooked by popular press reports of the case, the EAT did not announce a winner but remitted the matter, saying it was not persuaded that in the circumstances there could be only one conclusion on the question whether a dismissal would be fair in substance:
"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."
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