Human rights can lead into some strange places. An employee in France stole from another employee’s car parked outside the employer’s premises. He was dismissed for gross misconduct. He sued on the grounds that this was an invasion of his private life and violated Article 8 of the European Convention. Had he stolen from the employer, he would have lost. He did lose at the court of first instance. On appeal, he won. Just the French being over-logical as usual? Sur le contraire. It also applies in Britain.
Of course, if the private act of a school employee raises questions of child protection, then the right to private life is no protection and the General Teaching Council can respond to reports of infringements of professional standards. But schools should “gang warily” about acting on things that their employees get up to out of school. Faith schools, which make stipulations about conduct being “in accordance with the tenets of the faith”, have won cases, but they have also lost where the offence was remote from the school or protected by discrimination law.
That isn’t the end of it, though. The victim might conceivably fall out with the thief. Other employees might take sides. Efficiency would suffer. The business would be damaged. It is an implied contractual term that an employee will be loyal and not harm the employer’s interests either directly, indirectly or, for example, by indulging in damaging public criticism of the employer. To break these terms is effectively to say you have no intention of observing your contract and you dismiss yourself. A school must prove damage, but if it can, it will win. So our French employer lost only because he did “the right thing for the wrong reason”. A good reason to take advice before you act.
Richard Bird, Legal consultant to the Association for School and College Leaders.
