Aside from the pathetic pun the title of this post is also misleading, I don’t think there are any significant employment law implications of Cliff Richards recent Human Rights Act victory against the BBC. However, I do think the judgement, if it stands (I am not sure it will upon appeal), could have some significance for some ordinary workers. But first a brief reminder of the facts of the case.
Cliff Richard was being investigated by South Yorkshire Police (SYP) in respect of an historic sex offence allegation that had been made against him. The SYP were planning to search Cliff Richard’s property. Motivated by fear that the BBC would report on this before the fact SYP cooperated with the BBC and as the search was being effected the BBC filmed this from outside, including the use of helicopter images – the story was subject received substantial media coverage. At no time was Cliff Richard actually charged by SYP for the offence.
Cliff Richard brought an action against both the BBC and SYP for a breach of his privacy and data protection rights under both the Data Protection and Human Rights Acts of 1998. In the event it was only necessary to consider his claim under the Human Rights Act. The BBC’s argument focussed much on Article 10 (Freedom of Speech/the Press) would be unduly interfered with if found wrong given the public interest in the matter. The finding of the judgement was that as a general principle a person who is subject to a police investigation up to and including arrest has a right to privacy that that investigation should be private and engaging that individual’s Article 8 (privacy and family life) rights. It should have been in Cliff Richard’s case, even though he was a public figure, and even if the investigation is in the public interest to be disclosed it does not follow that the subject of the investigation is.
The BBC have complained that the judgement “creates new case law and represents a dramatic shift against press freedom and the long-standing ability of journalists to report on police investigation.” Other commentators are equally critical such as David Hencke and Robin Callender-Smith. The issues are real but for my part I think this is a good judgement that prevents tarnished reputations based n little more than speculation, and rumour.
But what relevance has this to employment relationships, I hear you ask?
As I said I do not think the impact on employment law per se will be telling, although it could provide an interesting factor on the reasonableness of an investigation in cases such as Cooper in which a Police force provided an employer with details of an employee’s arrest which then relied on this information to base a misconduct investigation.
In my time as a union representative I have represented a number of persons whom have been ‘outed’ by media outlets about their arrest for criminal investigations. These cases always follow the same route. The fact of an investigation / arrest is either reported in the press, with some salacious context that is frequently inaccurate. Or alternatively, the employer is informed of police investigations and the story then finds its way into the media one way or another. The employee is suspended – which they are assured is only a ‘neutral act.’ The investigation proceeds, with the employee normally unable to contribute or respond to the allegations given to do so may prejudice his or her case (since no sooner has a response been given than it will be whisked off to the police). The employer refuses to defer the investigation until after the criminal investigation is concluded and so makes a decision on the (completely one-sided) evidence they have. The employee is dismissed with the major reason being that the employer has can no longer have trust and confidence in the employee, given the backdrop of criminal allegation or that the actions (even if not criminal) have brought disrepute upon the employer.
As a representative these cases are difficult, because for good reason the employee has followed their defence solicitor’s advice had not given a positive defence to the allegation or context. The only real arguments that can be advanced are procedural and these will rarely be sufficient to avoid dismissal – if dismissal is not an actual inevitability it is certainly the very likely outcome.
And this is where I think the Cliff Richard judgement is a cause of a certain degree of optimism. If the fact of an criminal investigation or even arrest encompasses the employee’s right to privacy the likelihood of these types of cases manifesting themselves by being reported in the media or even reported by the police under common law disclosure. As such the impulse for an employer to initiate an early investigation is much less likely to present themselves unless the employee reveals an investigation against them to their employer voluntarily. And if it does happens perhaps the employment tribunal will begin getting more serious about applying human rights in employment tribunal proceedings. Time will tell …