Will De Fazio-Saunders looks at privacy in the workplace – the fine line between legitimate monitoring and breaching employees’ human rights. This is slightly longer than usual but this is such an important subject we think it’s worth it!
The rise in the use of email and internet at work
Apologies for stating the obvious (!) but over the past couple of decades there has been a dramatic increase in the use of email and internet facilities, both in the social sphere and in the workplace.
This has led to a significant increase in the extent to which employees use their employer’s communications network for their own personal and private purposes.
Whilst some businesses have taken steps to prevent their employees from accessing their personal email accounts or social networking websites, and other employers have implemented even more draconian measures to restrict almost all internet access, many businesses do not think this appropriate.
First, because the internet is such a dispensable tool for so many jobs that restricting access to it altogether is a non-starter.
Secondly, because employers do not necessarily want to foster an office culture in which their employees feel like they have no freedom, their personal lives are irrelevant and they are not trusted.
Reasons for monitoring
However, there are many legitimate reasons for businesses to monitor, to a lesser or greater extent, their employee’s communications.
For example, amongst the reasons for monitoring employee’s communications are:
- To ensure the employees are complying with the terms of their contracts and the business’s policies;
- To monitor the amount of time employees are spending on personal communications;
- To assess performance;
- To investigate alleged acts of misconduct; and,
- To investigate suspected illegal activities, such as fraud.
The rise of litigation
As a result of the increase in internet, email and social media use, and the corresponding rise in employers’ monitoring of such communications, there has been a subsequent increase in litigation regarding the proper extent of lawful monitoring.
Much of this litigation has reached the European Court of Human Rights, which offers rulings on the European Convention on Human Rights.
Article 8 of the European Convention on Human Rights
Article 8 of the European Convention on Human Rights guarantees a right to respect for a private and family life, home and correspondence.
The Article also states that there shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law, and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Halford v United Kingdom
One of the leading cases on this issue, albeit relating to telephone lines rather than internet, email or social media communications, is Halford v United Kingdom.
In Halford, the former Assistant Chief Constable of Merseyside Police had sole use of her office, which contained two telephones, one of which was specifically designated for her private use.
During the course of a sex discrimination claim against her employer, she was given an assurance that she could use her office telephone for pursuing her case.
She subsequently discovered that her employers had intercepted her calls. The European Court of Human Rights held that Article 8 had been infringed, notwithstanding the fact that the calls were made from the employer’s premises, in the employer’s time and using the employer’s own telephone communications system and equipment.
“A legitimate expectation of privacy”
The Halford decision indicates that the level of protection offered under Article 8 relates to an individual’s “legitimate expectation of privacy”.
In Mrs Halford’s case, the circumstances surrounding her use of the telephone and the specific assurances that she had been given actively reinforced her expectation of privacy.
Accordingly, employers may well have a defence when they clearly inform their staff that their communications may be recorded.
However, such aims will need to be balanced with the rights of the employee to prevent the intrusion upon their private lives that will inevitably occur when their conversations are intercepted.
Following Halford, the Home Office issued guidance including that employers should warn employees that calls may be recorded or taped, and consider establishing “private lines” for employees.
Whilst the facts in Halford related to telephone use, the same principles apply to email and social media, and employers have relied on their internet and email use policies when dismissing employees to justify monitoring their communications.
Copland v United Kingdom
In Copland v United Kingdom, the European Court of Human Rights held that Article 8(1) was infringed when an employer monitored, collected and stored personal information relating to an employee’s telephone, email and internet usage at work.
The Court ruled that, just as telephone calls from business premises were, prima facie, covered by the notions of “private life” and “correspondence” for the purposes of Art 9(1) of the Convention, so were emails sent from work and information derived from the monitoring of personal internet usage.
Without any warning that her calls, emails or internet usage would be liable to monitoring, she had a reasonable expectation of privacy.
It was irrelevant that the data held by the employer had not been disclosed or used against the applicant in proceedings, since the storing of personal data relating to the private life of an individual also falls within the scope of Article 8(1).
Gosden v Lifeline Project Ltd
In Gosden v Lifeline Project Limited, the employment tribunal held that an employee who had been dismissed for sending an offensive email from his home computer outside working hours had been fairly dismissed.
Outside working hours, Mr Gosden sent an offensive email to the home computer of an employee of one of Lifeline’s biggest clients.
The tribunal considered that the email did not constitute private correspondence intended for the recipient’s eyes only: if it had it might well have found that it enjoyed the protection of Article 8.
However, the email had been sent with the express instruction that it be passed on by recipients, containing the words “It is your duty to pass this on”.
It was therefore not a confidential communication and thus the right to privacy under Article 8 was not engaged.
Teggart v TeleTech UK Ltd
Among the spate of cases in the employment tribunal involving employees’ use of social media was Teggart v TeleTech UK Ltd, in which the tribunal rejected the employee’s complaint that he had been unfairly dismissed for vulgar comments made about a colleague.
The employment tribunal found that when Teggart put his comments on his Facebook page, to which members of the public could have access, he “abandoned any right to consider his comments as being private” and so could not rely on Article 8.
Crisp v Apple Retail (UK) Ltd
The case of Crisp v Apple Retail (UK) Ltd arguably diminished the Article 8 protection in respect of social media, since the employment tribunal held that a dismissal for sending an offensive message was fair, notwithstanding the fact that the communication had been made privately via Facebook, the nature of Facebook and the internet in general is such that comments may be viewed and very easily forwarded on to others.
The tribunal held that, since Mr Crisp had no control over how his comments might be copied or passed on, it could not be said that he had a reasonable expectation that his comments would remain private.
Barbulescu v Romania
Finally, in the recent case of Barbulescu v Romania, the European Court of Human Rights held that Mr Barbulescu’s right to privacy had not been violated in relation to his employer monitoring his work internet instant messenger account and dismissing him for sending personal messages.
The court found that Mr Barbulescu had used the instant messenger on the company’s computer during working hours, in breach of the employer’s disciplinary procedure.
It was held that it was not unreasonable for an employer to want to verify that employees were completing their professional tasks during working hours.
In addition, the employer’s monitoring had been limited in scope and proportionate – the other data on Mr Barbulescu’s computer had not been examined.
Mr Barbulescu had also indicated that he had not used the instant messenger for personal purposes, so the employer had accessed the account in the belief that it contained professional messages.
In summary, some important points to member for employers when considering monitoring employees are:
- Insert a clause in your employment contracts to the effect that your employees must comply with your policies in force from time to time;
- Regularly update your internet, email and social media usage policies, and include a provision that employee’s communications may be monitored;
- List the reasons which may justify monitoring employees’ communications;
- Draw specific attention to this clause in your policy document reserving your right to monitor employee communications;
- Limit your monitoring of employee’s communications to the extent necessary to meet one of the justifications.
- If in doubt, take legal advice before you act.