2 September 2015

Employee privacy in the information age

Towards the end of August, Facebook – which was only created in 2004 – announced having had one billion active users in a day for the first time. In a parallel development, judgment was given in an Employment Appeal Tribunal case (British Waterway Board v Smith [2015] UKEAT/0004/15), upholding an employer’s decision to dismiss an employee in consequence of a number of comments he made about work on Facebook.

So what do these developments mean for employee privacy? Is it an outmoded concept now that so much of life is lived online? Not so fast, the picture is a little more complicated than that.

It is certainly true that there have now been several cases where employees have been dismissed for
their online – but non-work – activities. Some of the employee’s more repeatable comments in the Smith case included “that’s why I hate my work for those reasons, it’s not the work, it’s the people who ruin it, nasty horrible human beings” and “going to be a long day, I hate my work”. There was also a reference to drinking alcohol whilst on standby (which was prohibited by the employer). Other recent cases have seen employees dismissed for making comments about customers on Facebook, for sending offensive tweets from a personal Twitter account and for sending an offensive email from a home computer to a colleague’s home computer.

Employees are not without rights in this area, however. The right to privacy is enshrined in the Human Rights Act 1998. Although the Human Rights Act is only directly applicable to public authorities, it indirectly affects all employers as Courts and Tribunals are required to interpret legislation in a manner which is consistent with the Act. The right is not an absolute one – as described by the Court of Appeal in 2004, “What is 'private life' depends on all the circumstances … such as whether the conduct is in private premises and, if not, whether it happens in circumstances in which there is a reasonable expectation of privacy for conduct of that kind”. Therefore, for example, an employee’s Facebook settings and the number of Facebook friends they have may influence whether they can reasonably expect their Facebook posts to be considered private.

In addition, if employers are reading/monitoring an employee’s electronic communications and activity, employees may be able to invoke the safeguards in the Data Protection Act 1998. Amongst other things, the Act requires that information covered by the Act should be dealt with fairly and information collected should be adequate, relevant and not excessive for the purposes for which it is collected/used.

In principle, therefore, if an employer is being overly intrusive in monitoring an employee’s electronic communications and activity, the employee may be able to bring a claim under the Data Protection Act. In practice, such claims have been rare, not least because the Act states that, in most circumstances, an individual can only claim damages for distress if they have also suffered a financial loss (which will often not be the case). However, the Courts have recently taken a more liberal approach to interpreting the damages provisions in the Act, noting that the legislation, was designed primarily to protect privacy rather than economic rights, so we may start to see more claims in this area.

Even if information has been properly obtained, employers will usually need to be proportionate in their response to it if they want their action to be legally-defensible. Therefore, in the case of Crisp v Apple Retail (UK) Ltd ET/1500258/11, the dismissal of an Apple employee who had made derogatory remarks on Facebook about Apple products was found to be justified. The Tribunal accepted that the issue was a very serious one for Apple in view of the great importance of image to the company. In contrast, in the case of Smith v Trafford Housing Trust [2012] EWHC 3221, the High Court found that a Housing Trust which had demoted a self-identified Christian employee for making comments about gay marriage on Facebook had acted unlawfully. The High Court found that Mr Stafford’s posts were not capable of bring the Housing Trust into disrepute. Amongst other things, the comments were expressed in moderate terms and posted at a weekend (i.e. outside working time).

So it seems that employee privacy is alive and kicking. But identifying the appropriate boundary between work and private life is undoubtedly getting more challenging.

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