Holocaust denial

Photo by Alexey Soucho on Unsplash

To deny that the Holocaust ever happened (i.e. the murder of 6 million Jews – at least – by the Nazi regime) is not and never can be a protected human right or a genuinely held philosophical belief.

Such a belief (and its expression) is not protected in terms of Article 10 of the European Convention on Human Rights (which was directly implemented into Scots Law via the Scotland Act 1998 and the Human Rights Act 1998). Article 10 protects the individual’s right to freedom of expression.

Freedom of expression is not an unlimited right and certain forms of expression which constitute, for example, hate speech will not be protected by the European Convention.

The European Court of Human Rights in Strasbourg, France has just issued its ruling in this regard in the case of Pastörs v Germany ECHR 331 (2019).

Pastörs is a former member of the German regional parliament or Land for Mecklenburg-Western Pomerania. He was sat in the parliament for the far right National Democratic Party (NPD). He made an inflammatory speech on 28 January 2010 about the Holocaust using expressions such:

the so-called Holocaust is being used for political and commercial purposes”.

He also stated during the speech:

Since the end of the Second World War, Germans have been exposed to an endless barrage of criticism and propagandistic lies – cultivated in a dishonest manner primarily by representatives of the so-called democratic parties, ladies and gentlemen. Also, the event that you organised here in the castle yesterday was nothing more than you imposing your Auschwitz projections onto the German people in a manner that is both cunning and brutal. You are hoping, ladies and gentlemen, for the triumph of lies over truth.”

The speech by Pastörs was particularly insensitive and offensive given that Holocaust Remembrance Day had been commemorated the day previously.

Pastörs was subsequently convicted by a German court of criminal offences i.e. “violating the memory of the dead and of the intentional defamation of the Jewish people”. This conviction was upheld on appeal.

Pastörs then lodged a case to the European Court of Human Rights on the basis that his Article 10 rights and his Article 6 rights (the right to a fair trial) had been violated by the German legal authorities.

The Court has now found that Pastörs’ legal challenge under Article 10 “was manifestly ill-founded and had to be rejected”. On the matter of the allegation that his Article 6 rights had been violated, the judges by 4 votes to 3 rejected this argument.

The judgement can be appealed to the Grand Chamber of the European Court of Human Rights.

If so, it will be interesting to see how the judges respond.

As things stand presently, this judgement confirms that freedom of expression and speech are not unlimited rights.

A link to a press release about the decision of the court can be found below:

A link to the actual judgement of the court can be found below:

Copyright Seán J Crossan, 8 October 2019

Stalkers beware!

Photo by Jaanus Jagomägi on Unsplash

A few of my recent blogs have discussed the legislative process in the Scottish Parliament and several Bills that are already undergoing scrutiny and debate at Holyrood.

So, when quickly glancing at the Scottish Parliament’s website today, I was very interested to see a proposal for a Member’s Bill which wishes to toughen the law on stalking in Scotland.

The proposed measure (if given the green light) would take the form of a Stalking Protection (Scotland) Bill and it would have a simple rationale:

“… to increase protection for victims of stalking by giving police the power to apply for stalking protection orders on behalf of victims.”

Stalking was made a specific criminal offence as a result of Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010, but Rona Mackay MSP, the proposer of the measure clearly believes that the current law needs to be tightened in order to give victims of stalking more protection.

As part of her rationale, Ms Mackay makes reference to England and Wales where the Stalking Protection Act 2019 has been introduced. This legislation gives the a Chief Constable of a Police area south of the border the power to apply to a Magistrates’ Court for a stalking prevention order. Clearly, she is of the view that Scotland should follow suit in order to protect victims of this type of crime more effectively.

A link to the English and Welsh legislation can be found below:

http://www.legislation.gov.uk/ukpga/2019/9/enacted

In a YouTube video, Ms Mackay provides some background to her proposed Bill and invites members of the public to contribute to the consultation by submitting their views by 21 July 2019.

A link to the Consultation document can be found below:

https://www.parliament.scot/S5MembersBills/20190425_Final_Consultation_document.pdf

Perhaps this is an issue which you feel strongly about and would like to get involved in shaping a new law for Scotland?

You can do this by completing an online survey (link below):

https://www.smartsurvey.co.uk/s/StalkingProtectionBill/

At the moment, there is no Bill – only Ms Mackay’s proposal for one and it remains to be seen whether she will be able to secure the necessary support to take the matter forward i.e. securing the support of 18 MSPs from at least half of the political parties or groups represented in the parliamentary bureau; and provided the Scottish Government does not itself intend to legislate upon the matter.

Copyright Seán J Crossan, 13 June 2019

A step closer? Indyref2?

Photo by Seán J Crossan

Can you contain your excitement? Indyref2 (or a second Scottish Independence Referendum) is definitely on the horizon…

… except that it isn’t, but this is the impression given by sections of the Scottish and UK media.

On 28 May 2019, Michael Russell MSP, a senior Scottish Government Minister introduced the Referendums (Scotland) Bill in the Scottish Parliament.

Does this pave the way for more constitutional upheaval (as if Brexit woes aren’t enough at the moment?) across Scotland and the rest of the UK?

Well … actually, no it doesn’t.

Are we on the cusp of a political event approximating the Apocalypse or the Second Coming? Hardly.

From a cursory glance of the Bill and its accompanying documents, it’s very hard to see any mention of Indyref2. In fact, the aims of the Bill are incredibly modest:

This Bill provides a legislative framework for referendums. It provides a power for the Scottish Ministers, by regulations, to provide for the holding of referendums throughout Scotland within the legislative competence of the Scottish Parliament.”[my emphasis]

Critically, even Ken MacIntosh MSP, Presiding Officer of the Scottish Parliament has stated:

In my view, the provisions of the Referendums (Scotland) Bill would be within the legislative competence of the Scottish Parliament.

The Bill is very limited in scope (or timid depending upon your viewpoint). There’s nothing problematic about a future Scottish Government wishing to consult the people of Scotland through the medium of direct democracy (i.e. a referendum) on issues that are firmly within the legislative competence of the Scottish Parliament. Off the top of my head, I can think of several matters which might be suitable for direct democracy e.g. local government, NHS reorganisation, Police and Fire Services reform; education and more thorny, ethical and moral matters such as abortion and euthanasia. 

In terms of the Scotland Acts 1998 and 2016, the Scottish Parliament is confined to legislating upon matters or issues which are deemed to be “devolved”. It is not permitted to legislate upon matters which are deemed to be “reserved” to the Westminster Parliament.

In a previous blog (“Bring it on! (or Indyref2?)” published on 26 April 2019), I emphasised that the last Referendum on the question of Scottish Independence (held on Thursday 18 September 2014) was permitted to go ahead because the then UK Government and Parliament gave their consent. This constitutional arrangement became known as the Edinburgh Agreement of 15 October 2012 and operated under the auspices of Section 30 of the Scotland Act 1998.

Currently, it does not seem likely that the UK Government and the next British Prime Minister (who we know will come from the Conservative Westminster Parliamentary Party) are likely to agree to Indyref2 going ahead.

So, what does the Scottish Government hope to achieve?

Be in no doubt: this is about the political long game and the Scottish Government is attempting to shame the UK Government into giving it the right to hold a second referendum.

Scotland’s First Minister, Nicola Sturgeon MSP is calculating that she can portray the refusal of the UK Government to approve another referendum as a deliberate denial of the Scottish people’s fundamental democratic rights. If a UK led Conservative Government becomes even more unpopular, SNP activists and other independence supporters are hoping that it will become politically costly for the Conservatives to continue to oppose a second referendum.

Where will it all end? At the moment, who can really predict the future with any degree of certainty. 

Interesting times indeed!

An infographic (taken from the Scottish Parliament’s website) showing the introduction of the Referendums (Scotland) Bill can be seen below:

A link to the Bill and its accompanying documents can be found below:

https://www.parliament.scot/parliamentarybusiness/Bills/111844.aspx

Finally, you can find links to some news articles below which discuss the implications of the Bill:

https://news.sky.com/story/nicola-sturgeon-clashes-with-tory-hopefuls-over-second-independence-referendum-11731033

Indyref2 ‘framework’ bill published at Holyrood

The Scottish government wants to hold a new independence referendum in the second half of 2020.

Copyright Seán J Crossan, 3 June 2019

I’m a prisoner, I want to vote!

Photo by kyryll ushakov on Unsplash

In one of my first blogs (The problem with human rights … published on 1 February 2019), I discussed the problematic nature of this area – especially when individuals who have been less than law abiding, upright citizens are attempting to argue that they deserve to have their human rights respected.

In that previous blog, I focused on people such as John Hirst (convicted for manslaughter in England); Abu Qatada (a radical Islamic preacher who promoted Jihad); and Anders Brevik (the Norwegian mass murderer); who had all pursued legal actions in terms of the European Convention on Human Rights.

See:

  •  Hirst v United Kingdom (No. 2) (2005) ECHR 681
  •  Othman (Abu Qatada) vUK (Application No. 8139/09) 12 January 2012
  • Hansen (formerly known as Anders Breivik) v Norway (Application No. 48852/17) 26 June 2018)

As I often remark to my students, people such as those listed above are not ideal ‘poster boys’ if you were going to run a marketing campaign to promote greater awareness of human rights in Scotland.

This year (in Scotland) marks the twentieth anniversary of the implementation of the European Convention via the Scotland Act 1998 (in 2000, the Convention was further implemented across the UK as a result of the introduction of the Human Rights Act 1998).

I doubt very much that supporters of the system of human rights protection will wish to dwell too long on those difficult cases involving murderers, terrorists, paedophiles etc. It rather tends to undermine the whole basis of human rights or, in other words, it’s a very difficult sell.

Yet the difficult cases keep on coming and certainly make this area a constant source of fascinating debate and argument about the rights and wrongs of human rights. They also tend to drive home very forcefully the notion that human rights is a contested concept. Not everyone agrees what should be protected or who should be protected.

In 2000, the former Scottish judge, Lord McCluskey was highly critical of the introduction of human rights to the legal system. As far back as 1986, he had made the following remarks (in his Reith Lectures) about Canada implementing its Charter of Rights and Freedoms, which was based on the European Convention. In his opinion, this would lead to:

a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers.

His Lordship would make the point that the above remarks applied equally to the then Labour Government’s decision to implement the European Convention directly into the legal systems of the United Kingdom.

Whether Lord McCluskey came to regret making these remarks publicly, we can only speculate. They did, however, come back to haunt him when counsel for a number of appellants before the Appeal Court of the High Court of Justiciary argued that Lord McCluskey (and his fellow judges) should be removed from further participation in an appeal which relied very heavily on human rights arguments, in particular, the right to a fair trial under Article 6 of the Convention (see Hoekstra & Others v Her Majesty’s Advocate [2000] ScotHC 11).

John Hirst

When Andrew Neil, the well known journalist, questioned John Hirst about prisoners being given the right to vote in elections being held in the UK, he was less than subtle when he ran through Hirst’s charge sheet on the BBC’s Daily Politics Show in 2010.

Even instinctive supporters of human rights would have found it very difficult (emotionally speaking) to sympathise with Hirst’s position that the right to vote is a human right and this should be extended to those serving prison sentences.

If you want to be reminded of how awkward an interview this was, please click on the link below:

A persistent problem

The spark ignited by John Hirst smoulders on. Amazingly, we are still talking about the issue in 2019. Last month, the European Court of Human Rights (not to be confused with the EU’s Court of Justice), ruled against the UK for failure to implement its earlier decisions which came down firmly on the side of prisoners. Although the UK was found to be in breach of the European Convention, the European Court of Human Rights decided not to award compensation to those prisoners who brought the claim.

The case in question is Miller & Others v UK 11 April 2019 (Application No 70571/14) and the European Court of Human Rights is effectively declaring that UK electoral legislation does not comply with the European Convention.

Article 3 of Protocol No. 1 of the European Convention states that the signatories or High Contracting Parties (i.e. those countries, including the UK, which have signed the Convention):

… undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

All of the prisoners involved in this application were alleging that the UK was in breach of the above provision when they were denied the right to vote in one or more of the following elections: the European Parliament elections on 22 May 2014; the elections to the Scottish Parliament on 5 May 2016; and the UK General Election on 8 June 2017. 

Section 3 of the Representation of the People Act 1983 is the relevant legislation in this area. It states that:

A convicted person during the time that he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local government election.”

The above provision is known colloquially as the ‘blanket ban’ i.e. anyone convicted of a crime and imprisoned automatically loses (or forfeits) the right to vote. This is part of the convicted person’s punishment.

A link to the European Court’s judgement in Miller & Others v UK can be found below:

https://hudoc.echr.coe.int/tur#%22itemid%22:%5B%22001-192216%22%5D

As the supreme legislative body of the United Kingdom, it is up to the Westminster Parliament to rectify this situation – if it so chooses.

A political fudge

Since John Hirst won his case in 2005, successive UK Governments and Parliaments have fudged the issue. This whole area is a political hot potato because many politicians (irrespective of Party allegiance) are well aware of the dangers of standing up for the rights of prisoners. If advertising executives find it difficult to promote human rights using the inhabitants of UK prisons as exemplars, think how much more difficult it would be for politicians. They are extremely risk averse in these days of electoral volatility and they most certainly do not want to put their heads above the parapet to campaign for the rights of prisoners to be upheld. I suspect that many politicians would rather give a straight answer regarding their position raising taxes or cutting vital public services in order to avoid this particular, poisoned chalice.

Most politicians seeking re-election would not wish their opponents to level an accusation against them that they were soft on crime. Expect this story to keep on running.

Conclusion 

We have been well aware for some time that the so called blanket ban on serving prisoners being denied the right to vote is a breach of the European Convention. Put simply, this provision in the Representation of the People Act 1983 is incompatible with the UK’s obligation to uphold and protect human rights.

The consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the UK Supreme Court’s decision in R (Nicklinson) Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

Copyright Seán J Crossan, 1 May 2019

Bring it on! (or IndyRef2?)

Photo by Andrew Buchanan on Unsplash

Well, there you have it: Scotland’s worst kept political secret. First Minster, Nicola Sturgeon announced this week at Holyrood that she wishes to bring legislation forward to hold a second, Scottish Independence referendum sometime in 2021.

The trouble is that this is a matter reserved to the Westminster or UK Parliament in terms of the Scotland Acts 1998 and 2016 i.e. it is a constitutional matter. In other words, the UK Parliament must agree to any request from the Scottish Parliament to hold another referendum. The referendum of 2014 was permitted because the then UK Prime Minister, David Cameron agreed to it. This was known as the Edinburgh Agreement signed by representatives of both the Scottish and UK Governments on 15 October 2012. Under Section 30 of the Scotland Act 1998, a legislative instrument (known as an Order-in-Council) was drafted permitting the referendum to proceed on terms agreed by both Governments.

Fast forward 5 years from the last independence referendum and it would seem that any permission from the UK Government, let alone the UK Parliament is most unlikely. In fact, David Liddington MP, Prime Minister Theresa May’s de facto Deputy, hit back almost immediately in response to Ms Sturgeon’s announcement to state that permission for a referendum would not be forthcoming.

Now, Mr Liddington is correct in strict legal terms. The future territorial integrity of the United Kingdom is a matter reserved to the national parliament at Westminster – not a local parliament such as Holyrood.

And yet … this is where politics rather than strict legal interpretations might come into play. The current UK Government ‘led’ by Theresa May is weak, divided, obsessed with Brexit and lacking a majority in the House of Commons. It has a limited shelf-life. This is an administration which no longer speaks with any real authority on the great political questions of our age (and that’s just the opinion of most Conservative MPs).

Mr Liddington’s refusal may well come back to haunt the Conservatives both in Scotland and nationally. Expect Ms Sturgeon to make maximum political capital here by saying that this is a deliberate attempt to thwart the political will of the Scottish people. At the last UK General Election (8 June 2017), the Conservative Party made impressive gains in the number of Scottish Westminster seats. Since then, with the mishandling of Brexit, continuing opposition to an independence referendum might mean that these electoral advances could be undermined, even reversed. It’s by no means certain that a future Jeremy Corbyn led UK Government (not a foregone conclusion) will favour a second independence referendum. There are many factors that still have to be played out here.

Ms Sturgeon (or one of her Ministers) could introduce a Referendum Bill to Holyrood, but would this be a credible legal move? Almost certainly not: Holyrood’s Presiding Officer would (rightly) be under huge pressure to declare the Bill as not having the necessary legislative competence in terms of the Scotland Acts. The Bill would have tremendous symbolic power and would almost certainly fire up independence supporters who are itching for IndyRef2.

Never mind the legal arguments, expect the action to take place on the political front.

Please find below a number of links to articles discussing the prospect of IndyRef2:

https://wingsoverscotland.com/a-plan-of-little-action/#more-109725

Nicola Sturgeon calls for indyref2 by 2021 Holyrood elections

Scottish independence: UK government ‘will not grant indyref2 consent’

Copyright Seán J Crossan, 26 April 2019

Food for thought?

Photo by Nick Fewings on Unsplash

The area of human rights law is constantly developing. As I discussed in an earlier blog (The problem with human rights published on 1 February 2019), human rights can be a contested concept e.g. the ongoing, divisive debate over whether to grant greater access to abortion in Northern Ireland.

When I ask students what human rights are, some will reply that the right to food should be a legal entitlement in Scotland. Admittedly, Article 2 the European Convention on Human Rights (as incorporated via the Scotland Act 1998 and the Human Rights Act 1998) protects the right to life and it could be argued that this vital right and the right to food security are intimately connected.

This is a particularly sensitive issue: in April 2018, a report in The Scotsman newspaper stated that the use of foodbanks in Scotland had risen dramatically. A link to this article can be found below:

https://www.scotsman.com/news/politics/use-of-food-banks-in-scotland-hits-record-high-1-4729188

Interestingly, the Scottish Human Rights Commission has submitted a report to the Scottish Government making an argument for greater food security. The Commission wants Scots Law to grant people an explicit entitlement to food security and, in this way, Scotland will be well on the path to becoming a good food nation in accordance with principles laid down by the United Nations.

A link to the Commission’s Report can be found below:

http://www.scottishhumanrights.com/news/change-the-law-to-protect-the-right-to-food-for-all/

Food for thought indeed!

Copyright Seán J Crossan, 16 April 2019

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

photo-1432888622747-4eb9a8efeb07.png

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