The heady combination of sex and employment law much beloved by the press came to the forefront in a recent case involving an NHS worker who claimed unfair dismissal after her bosses found out she appeared in pornographic movies. Although the judgment in the case is still awaited*, it does raise a lot of questions about how far an employer can go in regulating the behaviour outside work of employees.
The simple facts of the case are fairly straightforward. Ms Molloy was employed as a medical secretary to an NHS consultant. Although she would have access to a lot of patient information, she would rarely deal with or be seen by patients – it was purely an administrative role. There appears from the press reports to have been no issues with her work.
However, outside of work, she appeared in a number of pornographic films and apparently also advertised what are referred to variously as “kinky adult services”.
No-one in the Trust was apparently aware of this until it was brought to their attention by another employee (whom a number of press reports refer to as a “whistleblower” although it’s doubtful whether reporting on a colleague’s legal out of work activities would necessarily be covered by the whistleblowing protections).
Following this information, Ms Molloy was allegedly given a “resign or be dismissed” ultimatum.
So – were Ms Molloy’s activities outside work any business of her employer?
The Trust appears to have relied on two aspects – that she had breached their policy on second jobs, and that her behaviour had brought them into disrepute. I wrote about how to deal with employees who have more than one job here, and it’s difficult to see how having a non-health service job in her own time would cause a problem (especially since in the NHS many senior professionals have second jobs) . At worst, it might be a warning for failing to notify them.
So did her behaviour bring the NHS into disrepute? She wasn’t patient facing, and it appears that her activities had been going on for some time without attracting any notice (which given that online porn is easily available is quite surprising). Was the trust’s reputation damaged by being seen to employ her? Would the press have made anything more of the issue than they have done anyway, had they somehow got hold of the information sooner? Or would public confidence be damaged? It’s interesting that in an admittedly unscientific newspaper poll, an overwhelming majority felt she should not have been dismissed (a suspiciously convenient 69%!)
Of course, many people find pornography distasteful, immoral or demeaning to women. But is a personal moral opinion grounds to sack someone doing something that isn’t illegal? In employment terms, you’d really need to show that continuing to employ the person was causing significant damage to your business to justify dismissal – was it within the range of reasonable responses to the issue? It might well be a case of “Some other substantial reason” if this were the case.
*Update Sept 2016 – Ms Molloy’s claim was successful, primarily on the grounds that the Trust had failed to follow any real procedure, although the judge felt that the disrepute issue would have potentially been a fair reason had they dealt with matters correctly.