Human Rights and Unfair Dismissal: Private Acts in Public Spaces

Authors

  • Virginia Mantouvalou

    1. University of Leicester
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    • aLecturer in Law, University of Leicester. Thanks are due to Nicos Alivizatos, Harry Arthurs, David Bonner, Leto Cariolou, Colm O'Cinneide, Nicholas Hatzis, Dimitris Kyritsis, Stuart Lakin, George Letsas and two anonymous referees for comments on a draft of this article. Earlier versions were presented at the 2007 Society of Legal Scholars Conference in Durham, a staff seminar at the University of Bristol and the LSE Cumberland Lodge away weekend. I am thankful to Mark Bell, Steven Greer, Pascale Lorber, Tonia Novitz, Achilles Skordas, Charlie Webb and Mike Wilkinson for their comments and suggestions.


Abstract

This article addresses the termination of employment because of the conduct of the employee in her leisure time, in the light of the right to private life. It explores the impact on the retention of employment of activities taking place outside the workplace and outside working hours, and argues that the approach of UK courts and tribunals, which is based on a primarily spatial conceptualisation of privacy, is flawed. A fresh approach to privacy, resting on the idea of domination, is proposed, which is sensitive to the particularities of the employment relationship. Considering the fairness enquiry in dismissal, it argues that off-duty conduct may lead to lawful termination of employment only if there is a clear and present impact or a high likelihood of such impact on business interests; a speculative and marginal danger does not suffice. It further proposes that a particularly meticulous test is appropriate when certain suspect categories, such as the employees' sexual preferences, are at stake.

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