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Last Updated: Tuesday, 16 November, 2004, 11:31 GMT
The boss and my business
By Tom Geoghegan
BBC News Magazine

David Brent in The Office
Some bosses are more sensitive than others
Boris Johnson is accused of lying when asked by Michael Howard about his private life. But what protection does the law give the rest of us when the boss asks personal questions?

Whether or not the MP for Henley lied to the Conservative leader about his private life - and he denies it - it's a situation not many of us would like to be put in.

In fact the mere thought of answering questions about your private life to your boss would bring some people out into a cold sweat.

So next time there's a knock on the office door and you think the boss is probing a little too deeply, will the law help you keep your silence?

Article 8 of the Human Rights Act under the European Convention is a good start. It gives the right of respect to a private life to all public sector employees directly and to everyone else through the courts and tribunals.

Extra-marital affairs

And there are some circumstances in which, to coin a favourite phrase of Boris, you could safely tell your boss to "Bog off".

"Some activities are nothing to do with the employer," says Christina Morton, an associate in the employment law group at Beachcroft Wansbroughs.

"Like extra-marital affairs that don't concern a colleague, have nothing to with work and have no impact on work performance. In these cases it's really nothing to do with the employer at all."

If the relationship goes wrong and it affects work performance then the law would uphold the employer's right to intervene
Christina Morton
Beachcroft Wansbroughs
But there are occasions when your employer may have a good case.

"There are other categories of information which people might regard as private, such as health," explains Ms Morton.

"But if an employee is claiming long-term sick leave then the employer has a legitimate interest in looking at the background, even though this could be regarded as private."

Issues become a little murkier if the relationship is with a colleague. Then the right of privacy is counter-balanced by the interests of the employer.

"For example, if the relationship goes wrong and it affects work performance then the law would uphold the employer's right to intervene and put boundaries around it."

Public image

The nature of your work has a huge bearing on your legal rights and this was demonstrated by a case known as X and Y. A charity youth worker was dismissed after failing to inform his employers that he had been cautioned for gross indecency in a public toilet.

His claim that the dismissal breached his right to respect for his private life failed at a tribunal and at the Court of Appeal. It was rejected partly on the basis that a criminal offence which happens in a place to which the public has access cannot be regarded as taking place in private.

In firing him, his bosses claimed his conduct "fundamentally damaged the employment relationship...as your job involves day to day contact with young persons" and that his conduct might bring the employers "into serious disrepute". Failure to disclose the caution was also a breach of trust.

Germany: Employee may lie if employer intrusive, usually questions about extra-marital affairs or religion not allowed
US: No federal law forbids employer questions but restrictions exist on asking about disability or marital status, not extra-marital affairs
France: Employees usually well protected, although the Supreme Court has upheld the dismissal of a professional footballer spotted by fans in a night club because this could have an impact on his employer
SOURCE: Coudert Brothers
Ms Morton says the case illustrates how anything done in one's own home would probably be upheld by the court as within the privacy of the individual.

It also demonstrates the importance of not damaging the public image of the company by the conduct in your private life.

Paul White, an employment lawyer solicitor at Bishop and Sewell Solicitors, says: "The Human Rights Act means everyone is subject to the right of respect to their private life but this can be counterbalanced by the public interest.

"There is an implied duty of good faith between employers and employee and often employers can dismiss employees if their private life is bringing them into disrepute in the public sphere."

He says employees under interrogation can say the questions are irrelevant to the way they are performing and intrude too much into their private life. But the employer could say 'I'm, not happy with your answers' and dismiss them. Who would win in court depends on other factors.

"Employees are sometimes dismissed for bringing employers into disrepute but usually the evidence is so good - like robbing a bank or being caught in a lap-dancing club - that it's quite rare that it comes down to the answering of the questions."

Boris Johnson and Michael Howard
Happier times...Johnson and Howard
So keeping your mouth shut may not be enough if there is other evidence against you. But what about lying?

"An employee who lies to the employer can get into difficulty. There is an implied duty of trust and confidence that runs both ways between employer and employee," says Ms Morton.

"If the employer questions intrusively it can put itself in breach but an employee who deliberately lies may also be found to have breached trust and confidence."

But a fib does not automatically destroy any legal protection to an employee. It is possible a court could favour a lying employee who was trying to protect his or her privacy against an employer who over-stepped the mark, she adds.

In Germany, where employees have stronger protection under the law, an employee cannot be punished for lying if the employer did not have a legitimate interest in asking the question.

And in the US, there are laws restricting bosses asking about disabilities, marital status and health, but no laws governing extra-marital affairs.

Some of your comments appear below. Add your feedback using the form at the bottom of the page.

I was a victim of a similar episode about 10 years ago. I was called into a meeting to discuss 'pressures of work' with a representative (not my line manager) of the company I worked for. I was a female in my early 20s and he was in his middle 40s. He began asking non-specific questions relating to a new relationship of mine. As the meeting progressed he became more personal in his questions, eventually asking if I had been up ***ing all night. This was unacceptable behaviour and very real abuse of a senior position. I left the company and went through the dismissal by tribunal who ruled in my favour, deciding on sexual harassment. If there is something wrong with the line of questioning then I do believe you should challenge the company rather than let individuals get away with a bullying attitude.
Anon, UK

I can understand this situation well. I am a high paid IT professional in the city. I also lead what some people would term an alternative lifestyle. I am involved in the BDSM [bondage, discipline, sadomasochism] community, I am bisexual and polyamorous. I currently have four partners - my wife, another male and a female couple. All of them know about each other and most have other partners that I also know about. There is no cheating involved, we are all very open and honest about it and all the relationships are long term and very stable. While these are perfectly acceptable to all those involved, I somehow think they would be very unacceptable to my employer, so while at work I have to pretend that side of my life does not exist. My partners are in the same situation.
Anon, London

The comments referring to employees telling 'fibs' is very interesting as the emphasis is on the employee here. What if the employer is telling 'fibs'? Is it possible that a lying employer can be punished in the same way? Surely these things work both ways and the employer must convey trust and confidence?
Mick Dark, Dovercourt, Essex

I have no problems with the boss asking questions - as long as it works both ways!
Kate, London

At a previous job, I had my annual performance assessment downgraded from the top level because a more senior colleague mentioned that he had seen me smoking marijuana at a private party on a weekend. Well, it obviously wasn't affecting my work and as far as I am concerned the company had no right to know what I was doing in my private time. The problem was that the colleague was jealous about the attention I was getting from a girl at work that he was interested in. Alas, because I was not privy to the meeting he was in, I was unable to defend myself. The real problem that this highlights is that aspects about a person's private life can be used against that person by malicious colleagues. Therefore, personal privacy should be upheld in the workplace.
Graeme, Reading, UK

Due to being overworked by one employer (13+ hour days, plus 3 hours travelling), I suffered from exhaustion. The human resources dept (misnomer there) arranged for me to see a doctor on the pretext of an examination, but they'd actually arranged for a secret HIV test. Unfortunately, I couldn't get proof of this, but it was negative anyway. I considered it an appalling intrusion into my private life (the little I had). I really had given blood for my employers. Later, they fell into my trap to get them to admit in writing to their shabby attempts at constructive dismissal, took them to a tribunal & won. Too many employers seem to think that they own an employee's life, rather than just renting it for a few hours a day.
Barry, London

I was dismissed from a youth work post by a LEA after they learnt I was gay after I suffered a homophobic attack. I went off on sick leave and my employer did everything including disclosing my sexuality to colleagues who then refused to work with me on religious grounds when I came back to work.
John, Belfast

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