Thu 26 Sep 2019

Is privacy at work a thing of the past?

The right to privacy is enshrined in Article 8 of the European Convention on Human Rights - specifically it covers respect for private and family life, home and correspondence. The right is not absolute - it can be lawfully interfered with if that interference is in accordance with the law, in pursuit of one of a specified list of legitimate aims or if it is necessary in a democratic society.

With the advance of technology it has never been easier for employers to monitor employees. Virtually all employees are now aware of the fact that emails sent from work computer equipment, as well as internet use on such equipment, may very well be monitored. Recently though we have seen information stored on an employee's personal mobile telephone and also in personal emails being relied on by employers in the context of disciplinary hearings. It seems to be becoming increasingly difficult for employees to persuade courts and tribunals that their rights to privacy have been breached with employers very often being able to justify any interference.  

Without doubt CCTV, emails, social media and messaging have become a routine part of our days - the majority of us carry around phones capable of facilitating all of these things.  This facilitates a cross over between work and private lives that didn't previously exist.  WhatsApp groups made up of work colleagues, emails sent from work computers to spouses with both work and personal content, and people using their own devices to produce work related content.  What does an employer have a right to look at and what is off limits?

As a consequence of the blurring of the line between work and personal lives and correspondence we have seen arguments relating to potential breaches of Article 8 appearing more and more frequently from internal disciplinary hearings right through to the European Court of Human Rights ("ECtHR").

The common issue in these cases is whether the employee can have a reasonable expectation of privacy and this largely relates back to whether employees are made aware of the nature and extent of monitoring in the workplace.  That certainly was the case earlier this year when the High Court in England held that monitoring of "private" emails between an employee and his wife did not breach Article 8 in circumstances where the content of the emails was not personal but work related, and the employee had signed an Electronic Information and Communications policy allowing monitoring without notice.  It is clear that an employer is going to be able to put up a more robust defence to a breach of Article 8 argument if they have clearly spelt out to an employee the extent of any monitoring that is undertaken. 

Is this where we are heading with all work based activities? An assumption that we are being watched or monitored with an expectation that there will be electronically based evidence of how we have spent our day? In a bit of a catch 22 situation, the more aware workers become of these issues, the less able they will be to demonstrate an expectation of privacy and it is entirely possible that the breadth of privacy currently enjoyed in the workplace will continue to contract. 

As the year has progressed more decisions seem to be going the way of employers.  Recently the Court of Session has held that private communications may be used in police misconduct proceedings without breaching Article 8.  Police officers are held to a different standard than the general public, being subject to regulations which require them to abstain from any activity likely to give the impression of lack of impartiality in the discharge of their duties.  In this case it was private messages from a closed WhatsApp group, made up of police officers that were relied upon to start misconduct proceedings. The messages contained various discriminatory comments. The Court concluded that police officers could have no reasonable expectation of privacy where their behaviour in private could be said to be in breach of standards in such a way as to raise doubts about the impartial discharge of their duties.  Even though police officers are subject to higher standards than members of the public, arguably this case sets a precedent for any individuals who are subject to regulated or professional standards such as solicitors, doctors or financial services employees. 

Also this year we saw the case of George Garamukanwa.  He was dismissed from his position as a clinical manager at the Solent NHS Trust after police passed evidence obtained from his phone to his employer, including photographs, WhatsApp messages and emails.  A criminal investigation had been instigated following complaints of stalking and harassment being made by a colleague, something the employer had previously warned Mr Garamukanwa about when it was raised as a workplace issue.  


Mr Garamukanwa brought a claim arguing that the use of the information from his phone was a breach of Article 8. The ECtHR held that Mr Garamukanwa could not reasonably expect any material or communications after the date of the warning from his employer to remain private

In 2018 we also saw a case relating to covert use of CCTV in a Spanish supermarket work its way to the ECtHR.  The supermarket installed cameras to detect theft by customers which their employees were made aware of. However, they also installed cameras covertly intended to catch theft by staff.  Staff were subsequently caught and dismissed.  The ECtHR held that the use of the covert cameras had breached employees' privacy rights under Article 8. This judgement has been appealed and a decision is awaited. It will be very interesting to see the outcome in due course and it is hoped that this will provide further guidance on the limits of employee monitoring in a work context.

For the time being at least, notwithstanding the decisions by the European Court of Human Rights, employees may well face an uphill struggle when attempting to argue that their privacy rights have been breached in the context of misconduct proceedings.

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