Whether it is a barrister struck off for evading train fares (recent press reports of the tribunal hearing of Peter Barnett) or for posting anti-Semitic tweets (Ian Millard – see below), to name but two recent high-profile instances of conduct found to be disreputable by disciplinary tribunals, or a British Olympic gymnastics champion subjected to a two-month competition ban for apparently laughing at a wedding as another gymnast pokes fun at a call to prayer (Louis Smith), it is clear that the prevailing climate is one of expecting the great and the good to be, well, great and good. Indeed, it might be said that just being famous is being seen as attracting a moral price tag or responsibility by virtue of the opportunity to influence people. There is currently no formal code of conduct applicable to celebrities, though perhaps sporting bodies are becoming more paternalistic in this regard, but it is certainly still the case that being a member of a profession comes with its own responsibilities.
The law has long since recognised that a profession has a legitimate interest in protecting its collective fortunes, which are bound up in its collective reputation for behaviour consistent with the very standards it promotes. One bad egg, goes the theory, can cause quite the stench. The idea that someone who belongs to a profession that is entrusted with, for example, the health of the public, maintaining longstanding principles and traditions of justice or teaching future generations should behave with integrity and properly is hardly surprising. But what crosses the line as improper behaviour? This may vary from case to case. At one end of the spectrum is the type of conduct at which the reasonable bystander on the Clapham omnibus would express indignant shock and dismay, while at the other there is the type of conduct that would cause not so much as a flutter of mild irritation to cross Mary Berry’s face. In between are any number of cases in which the outcome is far from certain and which continue to hone the skills of any disciplinary or regulatory specialist.
Different professions understandably have different codes of conduct with some rules and values a common feature, such as honesty and integrity, while others are profession-specific. Society as a whole condones unlawful discrimination. It would take a bold regulator or disciplinary body not take a hard line in respect of conduct found to be an act of discrimination at law or in the nature of racist, sexist or other discriminatory behaviour, seen to be incompatible with the values of the profession. It is hard to think of a profession which would say, ‘it doesn’t matter to us whether our members hurl racist and sexist abuse at others as long as they do their job well’. The ‘what you do at home is your own business’ approach is fast falling out of favour and the idea that a member of a profession stands as a beacon or bastion of the profession’s values gains more traction.
What, however, of the right of a member of a profession to hold and indeed express personal views which are nothing whatsoever to do with their day job? Does membership of a profession come at the price of individual expression? The problem becomes more acute in the world of social media and instantaneous communication platforms. After all, there is a world of difference in, at least, impact between a private conversation at a dinner party, at which brash, shocking, possibly inebriated and unguarded views are expressed or exchanged and posting something on Twitter or Facebook which reaches many thousands of people.
Mr Millard had not practised as a barrister for a good few years. His tweets did not say that he was speaking for his profession or make an explicit link between his expressed views and his connection with the Bar or his professional status. Mr Millard’s Twitter biography had, however, referred to his position as a barrister.
Amongst a number of tweets in November 2014 were expressions of admiration for the Nazi regime. It has been reported that one of his tweets showed an image of a Nazi swastika alongside the German phrase meaning ‘Jews are unwanted here’. Another tweet referred to a cab driver not taking a fare from a blind man with a guide dog: “Muslims again. Wake up, UK!” Mr Millard said. There were several other tweets, which Mr Millard had posted on his personal Twitter account, which formed part of the disciplinary charges against him.
Mr Millard was disbarred for breaching Core Duty 5 of the Bar Standards Handbook.
In a public statement, the Bar Standards Board (‘BSB’) Director of Professional Conduct, Sara Jagger said: "The use of such offensive language is incompatible with the standards expected of barristers. The Tribunal rightly found that such behaviour diminishes the trust and confidence the public places in the profession and the decision to disbar Mr Millard reflects this."
The case raises some interesting questions. First of all, would the outcome have been any different if Mr Millard’s Twitter account did not contain any information linking him to the Bar? What if Mr Millard had chosen not to propagate his views via social media, but simply to take part in meetings of a far right organisation – would his membership and participation in such an organisation in which he made the same comments and observations to like-minded thinkers render him per se unfit for the Bar? What of the fact that he had not held a practising certificate since 2007, though the Code of Conduct’s reach is not limited to practising barristers and some never, in fact, practice at all?
Mr Millard has a right of appeal.
While there may be scope for debate about the types of activities or publicly expressed views, personal or otherwise, which may be fundamentally incompatible with membership of the Bar or similar learned and respected professions, what seems clear is that no matter what the personal opinion of a member of a profession may be, he or she cannot be seen to be discriminating against or endorsing the discrimination of any person on the basis of a protected characteristic (or indeed perhaps even characteristics which are not protected in law). That has, quite simply, become a no-go area in this day and age.
Matters get even more complicated when the inability to self-express is said to amount to an infringement of the rights of the person said to be committing the unlawful discrimination. Cue the Ashers case which concerns the supply of goods and services and a claim under the Equality Act 2010 for discrimination on the grounds of sexual orientation. The Christian, family-run bakery in Northern Ireland, which refused to make a pro-gay marriage cake because it ran contrary to the religious beliefs of the bakers, recently lost their appeal. Gareth Lee had tried to buy a cake decorated with the characters Bert and Ernie from Sesame Street below the motto ‘Support Gay Marriage’. This was for an event to mark International Day Against Homophobia in 2014. Ashers refused to make the cake considering that it would be sinful to do so. The Lord Chief Justice stated that, “The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.” It was an act of direct discrimination to refuse the order: “The supplier may provide the particular service to all or to none but not to a selection of customers based on prohibited grounds. In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflects their own political or religious message in relation to sexual orientation.”
This is, of course, a different point to the ones arising in the Millard case, in which Millard had not held a practising certificate since 2007 and the complaint did not arise from his refusal to provide services or the manner in which he did so, but simply the expression of views considered by the BSB to be “offensive”. It does, however, highlight that whether you are a celebrity sportsperson, a member of a profession or someone just seeking to offer goods and services to the general public, whatever your view, a contravention of the law concerning equality is not to be taken lightly.
Finally, we come to the knotty problem of the manager or employee who has been found by an employment tribunal or the court to have committed an act of unlawful discrimination against somebody, but denies doing so (‘the court got it wrong’) or maintains that it was done in furtherance of his or her own values (the Ashers bakery point). Shielded from the public eye, in large part, is the aftermath of these hearings, judgments in which are often handed down many months after the fray. While some company handbooks provide a clear route by which to instigate internal disciplinary action against the individual in question, many are paralysed by conflicting arguments and the absence of definitive advice as to whether to press for a disciplinary investigation or hearing or not. Paralysis frequently leads to inaction, the reasons for which become dimmer with time, until the next claim comes up and somebody dares to ask ‘what did you do after the last case?’ and the answer is, quite simply, nothing.
Any employer which does not have a set of conduct rules or processes fit for purpose in the event that an employee commits an act of unlawful discrimination, or indeed an act of misconduct in their private life which casts a shadow over their employability, would be well advised to review the position sooner rather than later. That wedding video may come back to haunt you sooner than next Halloween.
Eleena Misra has not been involved in any of the cases mentioned here. Eleena is a specialist in employment and equalities law and founded the professional discipline practice group at Littleton, which she jointly heads up. She is again ranked as a leader in her field in both Legal 500 and Chambers and Partners 2017.
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