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:

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

Copyright Seán J Crossan, 3 December 2019

It happened outside work … (or it’s my private life!)

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Photo by William Iven on Unsplash

In Chapter 6 of Introductory Scots Law, I focus on the conduct of employees (or should I rephrase that and say misconduct?).

Misconduct – especially the most serious examples of bad behaviour in the workplace – might be grounds for a fair dismissal of the employee concerned.

Section 95 of the Employment Rights Act 1995 states that an employment contract could be terminated by the employer by reason of the employee’s conduct. Such a dismissal or termination of contract could be regarded as a fair dismissal (Section 98: ERA 1996).

If procedures are properly followed by the employer when contemplating dismissal as the ultimate disciplinary sanction, it will be very difficult for the employee to dispute this.

It’s very important for an employer to spell out to employees the type of conduct which could justify dismissal. This might usefully be done by having a section in the employee handbook which specifically addresses the issue of misconduct in the workplace. Additionally, a proper induction process for new employees might focus on the types of behaviour which the employer would almost certainly not condone. Regular refresher training for existing and longer term employees could also be very useful and, in bigger organisations, this would be an important function of the Human Resources or Personnel Department. The recent introduction of the EU’s General Data Protection Regulations (GDPR) in May 2018 is a case in point. Existing members of staff who handled personal or confidential data under the previous data regime would almost certainly be required to be brought up to speed about the more serious consequences of breaching the GDPR.

Misconduct outside the workplace

What about misconduct committed by employees outside working hours? There is an enduring myth amongst members of the public that what happens in your private life is no business of your employer’s. This is a very naive view to hold: employee misbehaviour – whether during working hours or outside work – can adversely affect the employment relationship. The employer will argue that misconduct committed outside working hours can have serious reputational consequences for the organisation.

As many individuals have found to their cost, extra curricular activities can lead to dismissal from employment or some other disciplinary sanction (see Pay v Lancashire Probation Service [2004] IRLR 129 where a probation officer who was part of a sado-masochistic circus act in his spare time was deemed to be fairly dismissed). On the other hand, the employer has to be careful and must not be heavy handed (see Redfearn UK [2012]  ECHR 1878 where the employee suffered unlawful discrimination when he was dismissed on the grounds of his political beliefs).

The case law is full of examples of employees getting themselves into trouble outside working hours as a result of alcohol and drugs misuse or committing criminal acts. Some examples can be seen below:

Richardson v City of Bradford Metropolitan Council[1975] IRLR 296 a senior meat inspector employed by the Council lost his claim for unfair dismissal in relation to misconduct committed outside work: he had stolen money from his local rugby club where he held the office of Treasurer. The Council argued successfully that this incident demonstrated a serious lack of integrity on the employee’s part and, thus, made him unsuitable for continuing employment.

Moore v C & A Modes [1981] IRLR 71 the employee in question was a section leader in a retail store. He had been caught shoplifting at another store and his employer decided to dismiss him. The dismissal was fair: the employee’s conduct had undermined his employer’s trust and confidence in him, not to mention the potential damage done to its reputation as a result of his criminal behaviour.

X v Y [2004] EWCA Civ 662 a charity support worker who worked with with young offenders was cautioned by police officers after committing an indecent act with another male in a public toilet at a motorway service station. He was also placed on the Sex Offenders’ Register as a result of receiving the Police caution. The employee had not been honest to the Police when asked questions about his job and, compounding this, he failed to inform his employer about the situation. The employer decided to dismiss this individual and the dismissal was deemed to be fair. The reputational damage which the employer suffered because of the employee’s failure to disclose what had happened was a significant factor here. The English Court of Appeal was of the view that the employee’s right to respect for a private life (on grounds of his sexual orientation) was not relevant here in terms of Article 8 ECHR as the indecent act in question was not of a private nature because it had been performed in a public toilet.

The right to privacy?

In particular, public sector employers or employers which discharge public functions will have to be aware of the consequences of Article 8 of the European Convention on Human Rights – the right to respect for a person’s private and family life. Unwarranted interference in a employee’s private life may cause the employer to find itself in a legal minefield. There can even be implications for free speech or freedom of expression (in terms of Article 10 ECHR) which could lead to an employee taking legal action against the employer (see Smith v Trafford Housing Trust [2012] EWHC 3221).

As a result of the Scotland Act 1998 and the Human Rights Act 1998, which implemented provisions of the ECHR directly into domestic law, the contract of employment is by no means immune from human rights considerations.

Private employers are also not exempt from the effects of the ECHR. They will be indirectly affected: the UK as a signatory to the Convention must ensure that human rights are adequately protected and this will extend to relationships between private individuals e.g. employers and employees.

The problem(s) with social media

In December 2018, Sky News reported that a Dundee United footballer, Jamie Robson had been subjected to disciplinary action for dressing in a racially offensive costume at a private party. Pictures of Mr Robson dressed in the offensive costume were posted on social media:

Dundee United defender Jamie Robson disciplined for blackface fancy dress
http://news.sky.com/story/dundee-united-defender-jamie-robson-disciplined-for-blackface-fancy-dress-11579477

With the explosion in the use of social media, there is now a much greater chance of employees being caught behaving in inappropriate ways or posting offensive comments online. In such an environment, employers will have legitimate concerns about the reputational damage done to their organisations as a result of employee misconduct which becomes widely publicised via social media platforms such as Facebook, Instagram or Whatsapp.

That said, however, we now live in a society where it is much easier for employees to be caught out in terms of misconduct committed outside of working hours. In Chapter 6 of Introductory Scots Law, I considered the implications of two Employment Tribunal judgements in relation to employee use of the popular social media platform, Facebook:

  • Stephens v Halfords plc ET Case No. 1700796/10 3rd November 2010 Torquay ET
  • Preece v JD Wetherspoons plc ET Case No. 2104806/10 18th January 2011 Liverpool ET

In Stephens, the employee was deemed to have been unfairly dismissed and was awarded compensation of over £11,350 (ouch!), whereas in Preece, the circumstances surrounding the employee’s use of social media did constitute grounds for a fair dismissal. Preece had signed the employer’s policy on the use of e-mail and social networking sites which contained the following warning that disciplinary action would be taken if comments were “….. found to lower the reputation of the organisation, staff or customers”.

In a more recent decision, Plant v API Microelectronics Ltd (ET Case No. 3401454/2016) 30th March 2016, the Norwich Employment Tribunal held that an employee’s claims that she had  been unfairly dismissed and wrongfully dismissed regarding “derogatory” remarks (which she had made on Facebook) about her employer had not been proved. Mrs Plant, the employee in question, had been with the company for 17 years and had a spotless disciplinary record.  In December 2015, the employer had introduced a very robust social media which listed the types of online behaviour which could be regarded as misconduct. In particular, employees were reminded that:

In particular, employees were reminded that:

The document also reminds employees that conversations between friends on Facebook are not truly private and can still have the potential to cause damage, reminding employees that comments can be copied forward onto others without the
permission, it stresses the need to not rely on privacy settings.

Furthermore, the Employment Tribunal noted that the new policy stated:

“… that any breach of this policy will be taken seriously and may lead to disciplinary action under the respondent’s disciplinary policy. Serious breaches will be regarded as
gross misconduct and may lead to summary dismissal under the respondent’s disciplinary procedure
.”

The Employment Judge Postle concluded that:

The Claimant [Mrs Plant] was aware of the Policy and one assumes she read it, she must have been aware what was and what was not allowed. The Claimant would have been aware of the consequences if she breached that policy despite this her profile referred to her position within respondents as an operator and dogsbody, it was clearly a description of her job with respondent clear to see it was derogatory and insulting if not to the respondents certainly to her colleagues occupying the same position. There is then that reference to that bloody place and the need to hurry up and sue them and pissing myself laughing. In the absence of an adequate explanation from the Claimant which was sadly lacking the respondents were entitled to believe that these comments were aimed at the respondent. …

I repeat that it might be that one would dismiss and another would not dismiss. It
may be seen as harsh but the respondents taking account of the Claimants long service and clear record nevertheless dismissed for a clear breach of the Policy and that would fall within the range of a reasonable response open to an employer. The dismissal was therefore not unfair and the dismissal was not wrongful
. [my emphasis]”

A link to the full Employment Tribunal judgement can be found below:

https://assets.publishing.service.gov.uk/media/5909db43e5274a06b30002d3/Mrs_E_Plant_v_API_Microelectronics_Limited_3401454.2016.pdf

Bullying and harassment via social media platforms

Social media can also be used by both managers and employees to bully and harass colleagues. In the wake of the #MeToo and Time’s Up movements, employers that ignore allegations of sexual harassment are almost playing with fire if they allow the workplace to become a degrading, humiliating or offensive environment.

Employers should have a clear policy on social media use both within and outwith working hours. Fortunately, organisations such as the Advisory Conciliation and Advice Service (ACAS) are on hand to provide useful guidelines as to employers can develop a coherent social media policy:

http://www.acas.org.uk/index.aspx?articleid=3375

Once the social media policy has been formulated, it will be the responsibility of the employer to ensure that employees are aware of its contents and that they understand the consequences of any breach of the rules contained therein.

It’s my private life!

Another issue for employers to grapple with is the personal use by employees of the internet or telecommunications equipment during working hours. Employers may have very good reasons for monitoring internet use e.g. to assess whether work is actually being done properly and to ensure that employees are not doing anything inappropriate during working hours. That said, there is a balance to be struck between the employer’s legitimate interests and the employee’s right to privacy.

In Chapter 6 of Introductory Scots Law, I discussed the implications of the European Court of Human Rights’ decision in  Bărbulescu v Romania [2016] (Application No 61496/08). It is worth restating the facts of the case:

Bărbulescuthe employee had his contract terminated by his employer because he had used his professional Yahoo Messenger email account to send messages to his brother and his fiancée. The email account had been set up for the express purpose of communication with clients of the employer. This account was not to be used for personal purposes as per the employer’s internal regulations. Furthermore, the employee was informed that communications with clients would be monitored by the employer. The employee argued that his right to privacy under Article 8 of the European Convention on Human Rights had been breached, but his legal action before the Romanian courts was dismissed. Eventually, he took his case to the European Court of Human Rights in Strasbourg.

The Fourth Chamber of the European Court of Human Rights considered the question as to whether Bărbulescu had a legitimate expectation of privacy in relation to use of the email account?: its conclusion was that he did not.

Bărbulescu’s situation was different from two previous decisions of the European Court – Halford v United Kingdom (1997) and Copland v United Kingdom (2007) – where the employers appeared to permit (to a certain extent) employee use of office telephones for personal purposes. A further question pondered by the Fourth Chamber of the Court was that although the employer had forbidden the use of work emails for personal use, did Bărbulescu still have a legitimate expectation that his account was not being monitored? The Fourth Chamber was of the opinion that employers had a legitimate right to check (during working hours) that their employees were fulfilling their job. The employer’s monitoring of Bărbulescu’s email account was far from excessive and satisfied the proportionality test.

Bărbulescu Round 2 (5 September 2017)

Since the Bărbulescu decision in 2016, the Grand Chamber of the European Court of Human Rights has overruled the judgement of the Fourth Chamber of the Court in September 2017.

At the time of the original Bărbulescu decision, I stated that it did not give employers free rein to read the private emails of employees which they had sent using company accounts as some of the British media were reporting (e.g. the BBC; The Telegraph; and The Mirror). The original judgement was not a snoopers’ charter and the moral to be taken from it was that employers had to be very clear as to how they expected employees to behave in relation to facilities like professional email accounts and company telephones (whether landlines or mobiles) and the fact that these may be monitored. An employer who failed to lay down clear guidelines could be running the risk of breaching the duty of trust and confidence and Article 8 (the right to privacy) of the European Convention.

Bărbulescu v Romania [2017] 5 September 2017 the Grand Chamber of the European Court of Human Rights held that the employer had violated Bărbulescu’s Article 8 rights.

What are the implications of the judgement for employees and employers in the UK?

Clearly, the Grand Chamber’s judgement will most obviously be welcomed by employees as bolstering the right to privacy in the workplace.

Contracting States to the European Convention on Human Rights have a positive obligation or duty to ensure that the necessary conditions exist to ensure that there is respect for the individual’s right to privacy in terms of Article 8:

“These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.” [my emphasis]

The European Court of Human Rights did, however, acknowledge that Contracting States to the Convention do enjoy a “wide” margin of appreciation (or discretion) “in assessing the need to establish a legal framework governing the conditions in which an employer may regulate electronic or other communications of a non-professional nature by its employees in the workplace”.

The Grand Chamber went on to note:

“… the Court [the Grand Chamber] is at best concerned with the protection of a core or minimum level of private life and correspondence in the workplace against interference by a private law employer.”

Conclusion

It remains something of an urban myth that employees cannot be disciplined for misconduct committed outside working hours. In extreme cases, the employer will even be entitled to use the nuclear option of dismissal. Each case will turn on its own facts and a key issue to explore will be the impact that the misconduct has on the employment relationship. If out of hours misconduct causes damage to the employer’s reputation e.g. derogatory posts on social media or downright criminal behaviour, these could, in themselves, be compelling reasons for disciplinary action (up to and including dismissal).

It is highly advisable for employers to develop a range of coherent policies which address the issue of misconduct in and outside the workplace and to ensure that employees are aware of these.

The notion that employees have an absolute right to a private life is also questionable. As we have seen, in the Bărbulescu decision, employers should be mindful of minimum rights to privacy, but this does not mean that employees will automatically be able to cry foul if they discover that their internet and telephone use is being monitored in the workplace. Again, employers should ensure that they have policies in place to address this issue clearly and that employees are aware of any rules.

 

Copyright Seán J Crossan, February 2019