Right to Freedom Of Expression to Parents and the Press V Employee Confidentiality
In Hill v Governing Body of Great Tey Primary School, the Employment Appeal Tribunal considered the relationship between an employee’s right to freedom of expression under Article 10 of the European Convention on Human Rights against an employer’s restriction on disclosure of confidential information.
Mrs Hill was a Dinner Assistant at Great Tey Primary School. Her job duties included “to respect confidentiality at all times”. Further, the School’s Confidentiality Policy provided for staff to speak with the Headteacher if they had any concerns about anything they had seen or heard. The Staff Handbook referred to confidentiality as a “very important issue”.
In June 2009, Mrs Hill witnessed a 7 year old child being tied by her wrists to a fence and whipped across the legs with a skipping rope by other pupils. Mrs Hill referred the incident to the Headteacher. However, she also spoke directly to the child’s mother at an after-school event, believing incorrectly that the mother had not been made fully aware of what had happened. The School suspended Mrs Hill pending the outcome of an investigation into her conduct. Mrs Hill contacted the press about her suspension, resulting in unfavourable media coverage for the School.
A disciplinary panel of School Governors found that Mrs Hill had breached confidentiality by speaking to the child’s parents and the press and that her actions had seriously damaged public and local community confidence in the School. Mrs Hill brought whistleblowing and unfair dismissal proceedings against the School. Whilst an Employment Tribunal dismissed the whistleblowing claim, they did find that Mrs Hill had been unfairly dismissed on procedural grounds on the basis that the investigation and disciplinary process were flawed. At the subsequent compensation hearing, the Tribunal considered whether the compensatory awards should be reduced for contributory fault.
As part of this exercise, the Employment Tribunal took into account Mrs Hill’s right to freedom of expression under Article 10 of the European Convention on Human Rights, noting that that right “must be exercised judiciously, responsibly and not recklessly.” It found that Mrs Hill had not acted in the child’s best interests but for her own personal gain and to obtain support for her own position.
Given Mrs Hill’s conduct, the Tribunal concluded that the dismissal was within the band of reasonable responses and that she would have been dismissed fairly after 2 months if a proper procedure had been followed by the School. Furthermore they considered that her compensation for the 2 months’ additional service should be reduced by 80% on account of her own contributory fault in causing her dismissal.
Mrs Hill appealed the decision to the Employment Appeal Tribunal.
The Employment Appeal Tribunal held that the Tribunal had incorrectly applied a contributory fault decision by adopting a “review” rather than a “predicted” test. In other words the Tribunal had asked itself whether, if the School had gone on to dismiss Mrs Hill after following a fair procedure, that dismissal would itself have been fair applying the band of reasonable responses test.
While it is true that the Employment Tribunal can only make such a decision on the assumption that the employer could fairly dismiss the employee at a later date, the Tribunal should have gone on to adopt a predictive approach and assessed the percentage of chance that the School would in fact have dismissed her.
The Employment Tribunal also took the opportunity to provide guidance on how to consider freedom of expression claims under Article 10. The Employment Tribunal considered that by qualifying Mrs Hill’s right to freedom of expression under Article 10 with a requirement to exercise it “judiciously, responsibly and not recklessly”, the Employment Tribunal had wrongly applied Article 10. It felt it was dangerous for a Tribunal to attempt to explain in its own homespun language the meaning of complex legal provisions. Where a balance has to be struck between a fundamental right on the one hand and qualifications in the public interest on the other hand, even subtle changes of language may have an unintended effect.
The Employment Appeal Tribunal felt that the Tribunal should have adopted a structured approach to determine how Article 10 affected the case before them. A Tribunal should ask itself the following questions:
1. Could the events fall within the ambit of the right to freedom of expression under Article 10.
2. If so, 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). In deciding whether Article 10(2) applied, the Tribunal should:
a. identify the aim which by putting a restriction on freedom of speech the party sought to achieve. On the facts of this case there were two potential aims – protection of the reputation or rights of others and prevention of the disclosure of information received in confidence;
b. satisfy itself that the restriction or penalty imposed in the light of that aim was prescribed by law. This does not necessarily mean that it has to be an Act of Parliament. A common law right such as a restriction on disclosure of confidential information or the implied duty of trust and confidence was sufficient;
c. if the restriction or penalty was prescribed by law, consider if it was necessary in a democratic society. The Tribunal would need to determine whether the measure concerned was appropriate to the legitimate aim to which it was said to relate and whether the extent of the interference with the exercise of that right was no more than proportionate to the importance of achieving that particular aim.
Importantly the Employment Appeal Tribunal rejected Mrs Hill’s argument that the School had no right to protect its reputation. A state school is not a Government body and its reputation is a matter of importance in attracting staff, children and funding. The case was sent back to the Employment Tribunal to perform a more careful balance of her right to free speech against her obligation to keep matters confidential.
This unusual case highlights the tension between the right to freedom of expression and the right of an employer to restrict disclosure of confidential information which might adversely affect its reputation.
One criticism that the Employment Appeal Tribunal had with the Tribunal was that the Tribunal had failed to clearly identify what was confidential about the information and to whom it was confidential. Employers need to consider this case carefully and make sure that they are very clear about what information is confidential within their institution and to whom it is confidential so that this particular aspect is more clear cut than it was in this case. A review of your terms and conditions of employment is advisable.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.