Employee’s right to privacy – Seán Crossan's Scots Law

The Battle of Balaclava?

Balaclavas can be very useful things to have to hand – when the weather is very cold or you’re discussing the Crimean War (1853-1856) from where the term for the garment originates in the United Kingdom (circa 1881, according to the historian and cleric, Richard Rutt). During the Crimean War, British soldiers wore the garment to cope with the sub-zero temperatures that they experienced during the winter months of the Campaign.

Today, the garments are still incredibly popular with cyclists and winter sports’ enthusiasts (I confess: I have two for cycling during the winter months and they’re great!).

Despite, the historical associations with the British Army’s involvement in the Crimean War, it’s not always advisable to use the Balaclava as a teaching aid for History classes – especially DIY History classes.

McClean, an Irish footballer playing for the English Championship side, Stoke City FC, has recently found this out to his cost.

In a bizarre social media post (on Instagram), McClean put a picture of himself wearing a Balaclava as he was talking to two children. What was the point of this strange exercise? McClean claims that he was teaching the children about history, but others have seen this as an endorsement of paramilitary groups – particularly the Provisional IRA.

There was a public backlash and McClean was fined by this Club. The player is something of a controversial figure to many as he routinely refuses to have a poppy printed on his football jersey in the run-up to Remembrance Day commemorations each November in the United Kingdom.

https://www.independent.co.uk/sport/football/premier-league/poppy-james-mcclean-matic-guardiola-klopp-remembrance-sunday-armistice-day-a9194266.html

McClean hails from the City of Derry in the North of Ireland which will be forever associated with the events of ‘Bloody Sunday’ on 30 January 1972. On that day, 13 innocent Civil Rights marchers were shot and killed without justification by members of the Parachute Regiment – as per the conclusions of Lord Saville’s Report (2010) which contradicted Lord Widgery’s findings published in April 1972. The Saville Inquiry took 12.5 years and cost the British taxpayer £191.5 million – the longest and most expensive inquiry ever in the United Kingdom (figures obtained from The Spectator).

The previous Widgery Report was seen by many in the Republican and Nationalist community as a cover-up and a whitewash in that it absolved the Parachute Regiment of any wrong-doing for the deaths. Inevitably, the Report fuelled a long lasting sense of grievance within this community. McClean grew up on Derry’s Creggan Estate – not far from St Mary’s Church where many of the funerals of the ‘Bloody Sunday’ victims took place.

We often forget that footballers can be employees i.e. have a contract of service with their Clubs as per Section 230 of the Employment Rights Act 1996. McClean is fortunate that he has retained his post; other, less famous employees might not have been so lucky.

Section 98(4) of the Employment Rights Act 1996 permits an employer to dismiss an employee (potentially) fairly by reason of his/her conduct (with the proviso, of course, that the employer follows proper procedures in line with current ACAS standards).

McClean might initially have protested that the social media post was done while he was outside working hours. Regular readers of this Blog will be well aware that this type of excuse is extremely naive at best. Yes, employees do have a right to privacy, in terms of the European Convention on Human Rights, but this is never absolute – especially if an employer can argue that the behaviour of an individual employed by him or her has caused reputational damage to the organisation.

Employers do have a part to play here: they have a duty to have clear and consistent guidelines on employee social media use within and outwith the work-place. It should go without saying (but I’ll say it anyway) that the employer should make sure that employees are aware of the existence of such guidelines and have actually read them.

The misbehaviour or misconduct of employees which takes place outside working hours can have a really serious reputational impact on your employer. Individuals, like McClean, with high profiles in the community should be aware of this. It won’t be the last time that we read about someone who is deemed to be a role model – a teacher or a sporting personality – who misbehaves outside work and pays the price for this type of behaviour.

A link to the story on the Sky News website can be found below:

https://news.sky.com/story/james-mcclean-irish-footballer-fined-for-balaclava-childrens-history-lesson-post-11964664

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/02/youre-never-off-duty/

https://seancrossansscotslaw.com/2019/12/08/different-standards/

https://seancrossansscotslaw.com/2019/12/03/the-limits-of-privacy/

https://seancrossansscotslaw.com/2019/09/03/facebook-folly/

https://seancrossansscotslaw.com/2019/06/05/im-a-political-activist-dont-sack-me/

https://seancrossansscotslaw.com/2019/05/20/social-media-and-dismissal/

https://seancrossansscotslaw.com/2019/04/11/social-media-misuse/

https://seancrossansscotslaw.com/2019/04/09/drunk-and-disorderly/

https://seancrossansscotslaw.com/2019/02/07/it-happened-outside-work-or-its-my-private-life/

Copyright Seán J Crossan, 2 April 2020

You’ve got (e)mail! … or will I ever get out of this place?!!!

Email can be a wonderful form of communication. It can also be, quite frankly, something of a curse for many employees and workers. Essentially, you’re never too far away from the work-place and bosses/clients/service users expect to receive an instant reply.

The expectation by bosses and managers that employees and workers should be monitoring their emails (constantly) does tend to be a contributory factor in the rising number of cases of work-related stress. Employers: please note that you have a duty of care to provide a safe working environment and part of this obligation includes monitoring unacceptably high levels of stress in the work-place.

There is a perception (rightly or wrongly) that UK employees suffer from some of the longest working hours in Europe. In 2019, data from the EU’s Eurostat Agency seemed to support this contention but, interestingly, the Organisation for Economic Co-operation and Development (OECD) took a more sceptical approach by questioning the method of data collection (the old adage about lies, damned lies and statistics springs to mind here).

Links to a BBC article about this issue and the Eurostat figures (and OECD response) can be found below:

https://www.bbc.co.uk/news/uk-politics-49795179

https://ec.europa.eu/eurostat/databrowser/view/tps00071/default/table?lang=en

https://www.oecd-ilibrary.org/economics/international-productivity-gaps_5b43c728-en;jsessionid=c_2XYmRNoOJLRgHdT0TJPQqs.ip-10-240-5-115

UK employees are, of course, entitled to receive a written statement of the main terms and particulars of their employment as per Section 1 of the Employment Rights Act 1996. This statement must contain a provision which addresses the employee’s normal weekly working hours.

Despite Brexit (which did occur on 31 January 2020 – in case you missed it), the UK is still following EU rules until the end of this year … One EU Law with particular relevance to this debate is the Working Time Directive ((2003/88/EC) which was transposed into UK employment law by way of the Working Time Regulations 1998.

In theory, the Directive and the Regulations cap the number of hours that employees (and workers) can work at 48 hours per week (technical point: this figure can be averaged out over a reference period – 17 weeks normally). Crucially, however, UK employees and workers can opt out of the 48 hour maximum by signing a declaration (opt-out) that they wish to do so. If they change their minds, they are entitled to do so by giving the employer a minimum seven days’ notice (or in certain cases – 3 months) of this intention.

The legal rules on working hours are all very well in theory, but what about the culture of organisations which may (at an informal level) promote the idea that long hours spent at work (or just working) are a sure fire way to get ahead in your career?

This is where the influence of email (and other instant messaging services) can be quite insidious (pernicious even?). Employees feel under pressure to deal with this work load at weekends, during holidays and evenings. Parents of young children and carers of elderly relatives, who may have negotiated flexible working arrangements, may be under acute pressure to deal with emails etc when they are outside the work-place. In this way, the work-place becomes like the Eagles’ song, Hotel California (‘You can check out any time you like, But you can never leave!‘).

Interestingly, in some of our ex-EU partner countries, there have been initiatives at both the organisational and legal level to curb the smothering influence of email outside the work-place.

There is a real danger here for employers that, by encouraging employee use of email outside working hours, it may constitute a policy, criterion or practice (PCP) – no matter how informal – which could open themselves up to accusations of indirect discrimination on grounds of sex (women are still the primary carers for children and elderly dependents) and disability (by reason of a person’s association with a disabled person) in terms of Section 19 of the Equality Act 2010.

Furthermore, employees might feel that they are under constant surveillance by the employer because it becomes easier to keep tabs on individuals when they are logging in and out of the company’s IT network. For employers, this could lead to legal challenges from employees who are concerned that the right to privacy and family life as enshrined in Article 8 of the European Convention on Human Rights has been violated.

Is there a better way of doing things? Yes, is the short answer.

In 2011, the German multinational car manufacturer, Volkswagen (VW) introduced major changes to its working practices by curbing the use of emails when employees were off duty. This agreement was negotiated by the company and trade union/labour organisations.

In France, in August 2016, they went further and passed the El Khomri Law (named after the French Government Minister for Labour who introduced the proposal). This law gave employees a right to disconnect from email. In one particular case which involved the French arm of the British company, Rentokil, an employee was awarded €60,000 because his right to disconnect from email had been breached.

Links to stories about the changes to VW’s working practices and the French El Khomri Law can be found below:

https://www.telegraph.co.uk/news/2018/08/01/british-firm-ordered-pay-60000-french-court-breaching-employees/

The debate about the right of employees to disconnect from email – whether this is negotiated via some sort of collective agreement or underpinned by law – now seems to have penetrated the British consciousness. Rebecca Long-Bailey MP, one of the leading contenders for leadership of the British Labour Party has thrown her hat into the ring by backing a trade union campaign to introduce a legal right to disconnect in the UK.

One small problem: the Labour Party lost the last British General Election on 12 December 2019 to the Conservatives and is, therefore, in no position to deliver. Over to you Prime Minister Johnson? (a man fond of the populist gesture).

A link to an article in The Independent about Rebecca Long Bailey’s support for the trade union campaign to introduce a law guaranteeing the right to disconnect can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.110220/data/9327866/index.html

Related Blog Articles:

https://seancrossansscotslaw.com/2019/10/23/a-hard-days-night/

https://seancrossansscotslaw.com/2019/02/25/the-work-life-balance-or-utopia-reimagined/

https://seancrossansscotslaw.com/2019/02/22/stress-kills/

https://seancrossansscotslaw.com/2019/02/11/employment-contracts-read-them-or-weep/

Copyright Seán J Crossan, 11 February 2020

The limits of privacy

Photo by Tony Liao on Unsplash

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:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh48.pdf?sfvrsn=0

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:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csih61.pdf?sfvrsn=0