Hill v Governing Body Of Great Tey Primary School is another high profile case which I mentioned briefly last month. Since it concerns disclosure of information and that is such a hot topic at the moment the decision is, I believe, worth further analysis, particularly in terms of the possible application of the European Convention on Human Rights The case concerned a dinner lady who was dismissed for breach of confidentiality after telling parents about a nasty bit of playground behaviour involving their child (the innocent party) without permission, and then going to the local press about it when she was suspended. The child had been tied to a railing in the playground and whipped across the legs by other pupils. There were red marks on her legs and rope burns and scratches on her wrists.
When she was sacked she made an unsuccessful whistle-blowing claim, and a successful unfair dismissal claim.
An Employment Tribunal found that she had been dismissed unfairly because the investigation and disciplinary process before dismissal were unfair, but that she would have been dismissed within a couple of months had a fair procedure been followed – and she was also guilty of 80% contributory fault, reducing her compensation accordingly. The Tribunal concluded that she would have been dismissed fairly after two months if proper procedure had been followed, and taking into account in addition the 80% deduction on account of her contributory conduct, awarded her £49.99
The Employment Appeal Tribunal (EAT) overturned the decision and remitted it for a rehearing. First, the tribunal had taken the wrong approach to deciding if a deduction from compensation was appropriate. It should have looked at how likely it was the employee would have been dismissed anyway, taking into account factors on both sides including issues such as her long service and good record, rather than what it appeared to have done, which is take it that she would have been dismissed and assessed whether such dismissal might have been fair.
Next, the EAT criticised the Employment Tribunal’s consideration of the employee’s right to freedom of expression under the European Convention of Human Rights; in doing so it had attempted to paraphrase the terms of Article 10, creating a “well-meaning homespun impression of them”. Having found that the reason for dismissal was not a protected disclosure, it had not then clearly addressed whether there had been a breach of the claimant’s right to freedom of expression.
Consequently, the deduction for contributory fault made could not stand for two reasons. First, while the school had rules about maintaining confidentiality, they did not make it clear what information should be treated as confidential, and who was entitled to have the information kept confidential. Second, because of the way it had paraphrased Article 10, the tribunal had not achieved an adequate balance between the employee’s right to freedom of expression and her duty of confidentiality.