The claimant was employed as a police officer for 22 years. The issue leading to this case was that he met a woman on a dating app and arranged to meet her. He told her that he was a police officer and she also worked for the police (albeit she was not an officer). The claimant travelled to work on a police motorbike and in uniform. He met the claimant on this journey and went into her car. He brought his notebook with him to avoid the meeting looking suspicious. At this point, the woman exposed her underwear and one of her breasts. Nothing further occurred at this point but the woman shared photos with the claimant later that day. The claimant also shared a photo of his genitals with the woman. The woman later found out that the claimant was married with children and ended the contact. She subsequently reported the claimant to the professional standards department.

An investigation and disciplinary process arose as a result. The claimant accepted that his conduct amounted to misconduct but stated that it was not gross misconduct. The Chief Constable found that he had used his position as ‘leverage’ to support the sexual relationship arising. The Chief Constable also found that the claimant had sent the unwanted explicit image. As a result, it was deemed that the action was gross misconduct and the claimant was dismissed.

The claimant appealed that decision to the Police Appeals Tribunal and when his appeal was refused he judicially reviewed the Appeals Tribunal. The remit of the appeal was whether the Chief Constable’s decision was ‘unreasonable’ as per the rules governing the Police Appeals Tribunal. The High Court examined the basis of the decision. They outlined that there was deference to be given to the Tribunal’s evaluation of the facts which had been agreed in the case. On the particular points, it was found that whilst the claimant did not use his position as leverage per se, the fact that he turned up to the car in full uniform and on his police motorbike had brought the police force into the meeting. To this end, a bystander would believe that it was a uniformed officer having a sexual encounter while on duty. As a result, this could give rise to serious harm to the reputation of the police force. On the issue of the image, the issue was whether it fell into the category of ‘unwanted’. However, the High Court stated that there was a difference between the photos sent from the woman (of her legs and cleavage) and the photo sent by the claimant which was of his erect penis. It was regarded as a significant escalation of the images and the claimant could not have known how the woman would respond to that image especially as they were still ‘strangers’. As a result, the claimant had put the police’s reputation at risk with sending the image as well. As a result, the Tribunal did not make any error and the claimant’s case was dismissed.

Practical Lessons

This case demonstrates how even when off-duty from a role the actions undertaken can still give reputational harm. The major issue here was the image that was being shown with the claimant wearing full uniform and travelling using a police vehicle. The Tribunal and the High Court looked at this through the prism of what an onlooker would think through the actions. The issue of sexualised photos being sent is also something which employers will have to be aware of – it may be designed as something which is ‘outside of work’ but it could well cause harassment for the receiver or reputational harm for the employer. Such considerations must be taken into account in terms of whether any action should be taken and the nature of that action.

https://www.bailii.org/ew/cases/EWHC/Admin/2022/2424.html