‘PRIVATE LIFE’ UNDER THE HUMAN RIGHTS ACT 1998
In my brief article ‘Social Media’ Policy I touched on, amongst other things, the position where messages by employees on social media, despite privacy settings, go ‘public’ or are simply ‘liked’ and which may or may not have damaged the employer. In this article I address the question whether employees’ human rights would be breached if their employers were to rely on information generated and held ‘privately’ for disciplinary purposes in circumstances where their conduct, for example, is an issue? I approach this question in the context of ‘public authorities’ and the Human Rights Act 1998 (‘HRA’).
Part 1 (The Convention) of Schedule 1 of the HRA contains Articles in which Article 8 (Right to respect for private and family life) states:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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.
s.6 (1) of the HRA states that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
Before examining whether or not a public authority employer has breached its employee’s private life, one needs first to determine what it is that is deemed to be ‘private.’ Is Article 8 even engaged? In other words, there would be little point in an employee asserting that her/his private life has been breached if that on which s/he relies is deemed to be neither private nor relevant. For certain, an employee is not the sole arbiter of what is deemed to be private and, therefore, what is deemed to be such would depend on the facts and circumstances of each case. But, I accept, this well used phrase – would depend on the facts and circumstances of each case – is not entirely helpful as that could be said for almost every case one encounters and so more is needed.
In X v Y the claimant was involved in a matter outside work for which he received a caution but, in breach of his terms of employment, withheld that information from his employer for which, when the police informed his employer of the caution, he was dismissed. He presented a complaint of unfair dismissal to the employment tribunal and was unsuccessful. He appealed to the EAT and then to the Court of Appeal; both unsuccessfully. As part of His Lordship’s ‘short answer,’ Mummery LJ concluded:
The applicant's conduct did not take place in his private life nor was it within the scope of application of the right to respect for it. It happened in a place to which the public had, and were permitted to have, access; it was a criminal offence, which is normally a matter of legitimate concern to the public; a criminal offence is not a purely private matter; and it led to a caution for the offence, which was relevant to his employment and should have been disclosed by him to his employer as a matter of legitimate concern to it. The applicant wished to keep the matter private. That does not make it part of his private life or deprive it of its public aspect [emphasis added].
On the matter of ‘engage,’ His Lordship said:
The verb "engage" is not Strasbourg terminology nor is it in the HRA. It is used in the preliminary sense identified by Lord Hope in Harrow London Borough Council v. Qazi  3 WLR 792 at paragraph 47: "the applicability or relevance in any way at all" of the Convention right to the facts, events or circumstances involved in the particular case, in respect of which a Convention right has been invoked. The question of applicability is prior to, and distinct from, the question of a possible breach of the Convention right [emphasis added].
So we have the question of whether or not the matter in dispute is private. The answer to that is not at the sole election of the claimant and if it is not deemed to be private then Article 8 is not engaged. In X v Y, for the purpose of the HRA the matter in dispute was not deemed to be private.
In the European Court of Human Rights (‘ECHR’) case of Bărbulescu v Romania the employer had internal regulations, which stated, amongst other things:
It is strictly forbidden to disturb order and discipline within the company’s premises and especially ... to use computers, photocopiers, telephones, telex and fax machines for personal purposes.
It should be noted that the regulations omitted any reference to an Internet surveillance policy being implemented in the workplace. Notwithstanding that, the applicant was dismissed after his employer informed him that his Yahoo Messenger communications had been monitored and that the records showed he had used the Internet for personal purposes, contrary to internal regulations. The applicant’s initial position was that he had only used Yahoo Messenger for professional purposes. When presented with a 45-page transcript of his communications on Yahoo Messenger, he notified his employer that, by violating his correspondence, they were accountable under the Criminal Code. The 45 pages contained transcripts of all the messages that he had exchanged with his fiancée and his brother during the period when his communications had been monitored; they related to personal matters involving the applicant. The transcript also contained 5 short messages that he had exchanged with his fiancée using a personal Yahoo Messenger account; these messages did not disclose any intimate information.
He took the employer to the Bucharest County Court, complaining that its decision to terminate his employment had been null and void since, by accessing his communications, it had violated his right to correspondence protected by the Romanian Constitution and the Criminal Code. The Court dismissed his complaint on the grounds that the employer had complied with the dismissal proceedings provided for by the Labour Code and noted that the applicant had been duly informed of the employer’s regulations that prohibited the use of company resources for personal purposes. He then appealed unsuccessfully to the Bucharest Court of Appeal. The ECHR considered his case.
After re-emphasising that the notion of private life is wide, the ECHR held that there had been no violation of Article 8 in that:
…there is nothing to indicate that the domestic authorities failed to strike a fair balance, within their margin of appreciation, between the applicant’s right to respect for his private life … and his employer’s interests.
The whole does not engage Article 8 but a part within it may have if taken in isolation?
During an investigation, does an employer have to decipher which parts of the whole evidence collected are deemed private and which are not? The answer, in part, may be found in the recent EAT case of Garamukanwa v Solent NHS Trust. In this case the claimant had a personal relationship with a work colleague, which had ended, following which various messages/anonymous emails said to be malicious in content were sent to her, her colleagues, her and his supervisors and a person with whom he believed both the claimant was in a new personal relationship and had been the cause of the break-up. Messages were sent from a fake Facebook account. The partner, believing, amongst other things, that she was being stalked by the claimant, complained to both the police and the employer. The former investigated the matter but no formal charges were brought. However, the police provided the employer with a copy of its evidence, which contained, amongst other things, photographs found by it on the claimant’s phone that included photographs of what was established by the police as having been his ex-partner’s home address and a photograph of what appeared to be a sheet from a notebook, which contained details of the email addresses from which the malicious emails had been sent.
The claimant had denied that he was responsible for sending the malicious messages/email. However, without distinguishing between the private material – the emails sent to private email addresses and photographs obtained from the claimant’s phone – and the anonymous malicious emails sent to work email addresses, his employer dismissed him, ‘principally in reliance upon the photographs on the claimant’s phone, he was responsible for sending the emails.’ He presented a complaint to the tribunal and later submitted (it was not pleaded) that Article 8 had been breached because the key information on which his employer relied was private. The tribunal dismissed his complaint and he appealed to the EAT.
The EAT held that:
the case the tribunal was addressing and in which any Article 8 rights had to be addressed was a disciplinary investigation into matters that, whilst they related to a personal relationship with a workplace colleague, were brought into the workplace by the claimant himself and were introduced into the workplace as giving rise to work related issues. The emails of particular concern were published to colleagues at work email addresses. The publication of those emails had an adverse consequence on other employees for whom the employer had a duty of care, and raised issues of concern so far as the employer’s own working relationship with the claimant or individual responsible was concerned. These are all features that entitled the tribunal to conclude that Article 8 was simply not engaged and was therefore not relevant because the claimant had no reasonable expectation of privacy in respect of the private material.
Also, it held that the above was not disturbed despite that the tribunal had treated all of the material together and in the same way without distinction.
In conclusion, it is clear, I am sorry to repeat, that the outcome of similar cases will undoubtedly depend and turn on their particular facts and circumstances. For example, an employer monitoring its employee’s use of its computer without a relevant policy, enabling it to do so, does so at a risk. Also, whether or not it is within the police’s authority to provide an employer with information found on an employee’s ‘personal’ phone without that employee’s prior consent is open to debate. However, rather than leave it there, in my view, it is probably safe to say that what clearly emerges from the above cases is, like I said earlier, the answer to whether or not a matter is deemed to be private is not at the sole election of the claimant. If it is not deemed to be private then Article 8 is simply not engaged and one need not look any further than that.
© RYAN CLEMENT 2016