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Several of my previous blogs (It happened outside work … (or it’s my private life!) published on 7 February 2019; Social Media Misuse published on 11 April 2019; and Social media and dismissal published on 20 May 2019) have addressed the issue of whether employees have a right to privacy in the work-place.
The short answer is yes and no: privacy is not an absolute right.
Privacy in the work-place is becoming more of an issue thanks to the widespread use of social media by employees outwith working hours (and, of course, during the working day).
If you’re working in the public sector (and this, potentially, covers a large number of employees), Article 8 of the European Convention on Human Rights i.e. the right to family and private life could be particularly relevant to your situation.
Even if you’re employed by a private sector organisation, Article 8 rights are still relevant because they are ultimately guaranteed by the State (the United Kingdom) as a signatory to the European Convention. Furthermore, there are all sorts of situations where private sector organisations may be regarded as ’emanations/entities of the State’ because they carry out some type of work or provide a service which is beneficial to the wider public (think utilities companies or those organisations which benefit from outsourced contracts from local and central government).
Regular readers of this blog will know, of course, that provisions of the European Convention have been incorporated into Scots Law via the Scotland Act 1998 and the Human Rights Act 1998.
Employers, quite rightly, may have legitimate concerns about the type of content or statements that their employees post on social media platforms – especially if such material could cause the organisation to suffer some sort of reputational damage.
In such circumstances, it’s simply not a competent defence for employees to argue that disciplinary action (up to and including dismissal) which might be taken by their employers represents unwarranted interference in their private lives.
That said, it is very important for employers to set out clear guidelines and policies covering social media (mis)use by employees during and outwith working hours. There is a balancing exercise to be had here between the legitimate interests of the employer and the employee.
So, it was with some interest that I read about a case before the Outer House of the Court of Session during the summer which dealt with the boundaries of employee privacy (see Petition of B, C and Others v Chief Constable Police Service of Scotland and Others [2019] CSOH 48).
Lord Bannatyne rejected the Petition for judicial review lodged by a number of serving Police Scotland officers who were accused of (non-criminal) misconduct by their employer. These officers had allegedly used the WhatsApp social media platform to exchange a number of messages between them which were deemed to be offensive in nature and not in keeping with their role as serving members of Police Scotland.
Police Scotland wished to access the content of these messages in order to progress the misconduct hearings, but the officers involved in the disciplinary investigation argued that this constituted a breach of their human rights – specifically their rights to privacy Article 8 of the European Convention on Human Rights. More generally, the officers were also arguing that they had the right to privacy at common law.
His Lordship highlighted the significance of the important decision of the European Court of Human Rights: Von Hannover v Germany [2005] 40 EHRR 1 to the case before him.
Von Hannover raises three important considerations:
“… the width of the concept of private life; the purpose of Article 8, i.e. what it seeks to protect; and the need to examine the particular circumstances of the case in order to decide whether, consonant with that purpose, the applicant had a legitimate expectation of protection in relation to the subject matter of his complaint.”
The key issue which Lord Bannatyne identifies from Von Hannover, is whether the Scottish police officers “had a legitimate expectation of protection” in terms of Article 8; or to draw upon a phrase later formulated by UK Supreme Court Justice, Lord Toulson: “a legitimate expectation of privacy” (see In re JR38 2016 AC 1131).
In rejecting the officers’ petition, Lord Bannatyne focused on the existence of the Standards of Professional Behaviour contained in Schedule 1 to the 2014 Regulations to which all serving Police officers must adhere (in particular the officers had sworn an oath to uphold these Standards both while on and off duty).
His Lordship stated:
“There is a restriction on police officers’ private life and therefore their expectation of privacy. … It is only in relation to these matters that there is a limitation on the officer’s privacy it is not a whole scale intrusion into his private life. Accordingly to achieve the underlying purpose of the Standards, namely: the maintenance of public confidence in the police, police officers have a limitation on their expectation of privacy as above described.“
A link to Lord Banntyne’s judgement can be found below:
A link to how the story was reported by BBC Scotland can be found below:
https://www.bbc.co.uk/news/uk-scotland-tayside-central-48799289
As a point of interest, several days after Lord Bannatyne’s judgement was reported, the BBC carried a story about United States Border Patrol officers who were suspended from employment for posting offensive remarks about migrants (and other individuals) on Facebook.
A link to this story can be found below:
https://www.bbc.co.uk/news/world-us-canada-48834824
Reclaiming motion to the Inner House
Clearly dissatisfied with the judgement of Lord Bannatyne in the Outer House, the Petitioners appealed to the Inner House of the Court of Session by way of a reclaiming motion.
On 16 September 2020, the Inner House issued its judgement in this regard (see Petition of B, C and Others v Chief Constable Police Service of Scotland and Others [2020] CSIH 61). The Petitioners’ arguments (the reclaiming motion) were comprehensively and unanimously rejected by Lady Dorrian, the Lord Justice Clerk, Lords Menzies and Malcolm.
Some of Lord Malcolm’s remarks were especially striking and illuminating:
“Essentially, the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.” (Lord Nicholls in Campbell v MGN Ltd [2004] 2 AC 457 at paragraph 21) …
… All of those involved were police officers. Each had solemnly sworn to uphold certain professional responsibilities and standards in both their public and private lives, and had promised, in effect, to take action if informed of the misconduct of others. This was known to each participating officer. To take perhaps an extreme example, if a constable (or indeed any public official) writes to a colleague stating that he accepts bribes, he might hope that it will be treated in confidence; he might even have such an expectation, but if so, it is neither reasonable nor legitimate.”
Lord Malcolm also pithily disposed of an argument put forward by Counsel for the Petitioners:
“Mr Sandison submitted that police officers should enjoy the opportunity to have “off the record” communications between each other in whatever terms they consider to be appropriate. As he put it, the petitioners should be “free to be persons”, presumably as opposed to being members of the police force. The difficulty is that they are both.”
A link to the judgement of the Inner House can be found below:
Copyright Seán J Crossan, 3 December 2019 & 16 September 2020
Seán Crossan's Scots Law 
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