Workplace privacy, human rights and disciplinary investigations

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24 Nov 2016

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By Amanda Beattie, Regional Litigation Manager Workplace privacy has been in the spotlight again this year, when the Claimant in the case of Brown v Commissioner of Police for the Metropolis was awarded £9,000 in damages following a successful claim under the Data Protection Act 1998 and the Human Rights Act 1998. This was due to Brown’s employer misusing and disclosing her personal data by making enquires to another police force to gain evidence for the allegation that she had taken unauthorised holiday while on sick leave. The employer’s enquiries were part of an investigation into alleged misconduct for breaching the absence management procedure. Can personal messages sent at work be used as evidence? However, further case law this year has outlined that employers can read and use as evidence as part of a disciplinary investigation, the personal messages sent by employees at work, whether that be via email or social media. The European Court of Human Rights ruled in the case of Barbulescu v Romania that there had been no breach of Mr Barbulescu’s Article 8 right – in relation to his right to the respect of private life and correspondence, when he was dismissed for making private use of his employer’s Yahoo Messenger account during work hours, when he had been notified that his communications could be monitored. Similarly in this year’s case of Mr G Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal (“EAT”) held that the use of the contents of personal emails and photographs taken on the employee’s iPhone as part of a disciplinary investigation was not a breach of Article 8 of the European Convention of Human Rights. The content of the material touched on workplace issues and therefore the EAT considered that it was open to the Tribunal to find that Article 8 was not relevant in these circumstances. Surveillance during investigations Employers use of covert surveillance of employees in disciplinary investigations have also been scrutinised by the Employment Appeal Tribunal. In the case City & Council of Swansea v Gayle. In this case, the Council had put Gayle under cover video surveillance when they were informed that he had been seen playing squash at a local sports centre when he should have been at work. Mr Gayle was dismissed and bought proceedings at the Employment Tribunal for unfair dismissal. The Tribunal determined that he had been unfairly dismissed and by placing him under covert surveillance the Council had breached his Article 8 rights. On appeal, the EAT disagreed with the Tribunal decision and found the dismissal and fair and that Article 8 was not engaged in the first place with this case. This was on the basis that

  1. the surveillance of Mr Gayle was outside the sports centre and therefore in a public place;
  2. the surveillance took place when Mr Gayle was supposed to be working and therefore an employer is entitled to know where an employee is during paid time and Mr Gayle should not have a reasonable expectation that his whereabouts in work time should be kept private from his employer;
  3. Mr Gayle was being dishonest and being paid by his employer when he was engaged in his own personal activities and therefore there was no reasonable expectation that this conduct is entitled to privacy.
Croner guidance Any employer wishing to use covert surveillence for use in a discplinary investigation is outlined in the "employment practices data protection code". This states that before considering arranging for covert surveillance to be carried out on an employee, the employer's senior management should carry out an impact assessment to decide if and how to carry out the surveillance. The impact assessment should clearly identify the purpose behind the covert surveillance and the benefits it is likely to deliver, identify any likely adverse impact, consider alternatives or different ways in which the surveillance might be carried out, and then judge whether covert surveillance is justified. If covert surveillance is thought to be justified, the employer must ensure that the surveillance does not go beyond that which is reasonably necessary to protect the business – in that it must be a proportionate response to the issue that it is seeking to resolve.   It would always be best practice for an employer to seek specialist advice if they wish to use surveillance or use personal communications as part of a disciplinary process, as the case law in this area is frequently evolving and is a very fact specific depending on the individual circumstances.

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