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Privacy in the workplace

LLB EMPLOYMENT LAW COURSEWORK
Critically evaluate the law on privacy in the workplace
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Is the current law an unnecessary burden on employers?
Privacy in the workplace is an emerging legal issue, especially with the continuing reliance on the internet,
email and other technologies, which are integral parts of a typical employees daily routine
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‘Article 8 may give rise to claims by employees
that employers are infringing their rights to respect for private life, for example by acquiring and storing
information about them, by intercepting their communications, by monitoring their use of the internet, by
subjecting them to be closed circuit television, drug testing, grooming and dress regulations, or by
attempting to prohibit personal relationships between work colleagues
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This essay will analyse the extent the right of information privacy is applicable to the workplace
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The original opinion was that expressed by Ford (2002) ‘that there is no right to privacy at work, with an
almost absolute priority to management prerogative and almost no recognition to workers’ private
interest’3
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4 However, the argument that individuals can have no
expectation of privacy at work is not sustainable, due to the longer and flexible hours many employees
undertake who may simply have no choice but to carry out their private business during working hours
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6

1

Robert Upex, Richard Benny and Stephen Hardy, Employment Law (Oxford University Press, Oxford 2009) 50
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3
BPP Employment law lecture (2012), Privacy in the Workplace
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bpp
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5
Oliver, ‘Email and Internet Monitoring in the Workplace: Information Privacy and Contracting-Out’ (n 2) 326
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2

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Privacy in the workplace

Ford explains that the ‘potential for abuse is clear: information may be collected for purposes which are
irrelevant to performance at work; it may include private facts; it may be collected for one purpose but be
used for another; it may be inaccurate; and it may be disclosed to third parties without the knowledge or
concept of the worker’7
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The technology makes prying into the private lives of
employees both easier for the employer, and harder for the employee to detect
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The DPA 1998 defines UK law on the processing of data on individuals
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The Act defines 8 principles, including: data
only to used for specific purposes for which it was collected; should be no more than necessary; an impact
assessment is required; needs to be a clear purpose; employees must be aware; and has to be reasonable,
justified and no more than criminal activity that is suspected
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9 It also applies to all workers
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Schedule 1 states that data must be:
processed fairly and lawfully; obtained for a specified and lawful purpose; adequate, relevant and not
excessive; accurate and up to date; kept for no longer than necessary; processed in accordance with the
individual’s rights; protected from misuse, loss, damage; and protected from transfer to a country without
adequate protections
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11 Employers generally have to justify why they need to collect
personal data from their employees
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12
In keeping with the Act’s aim of protecting privacy, the Act confers special protection on sensitive data,
including any information containing: racial or ethnic origin; religious beliefs; political opinions; trade
union membership; health; sexual orientation; criminal convictions
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7

Ford M, ‘The Data Protection Act 1998’, (1999) ILJ 28, 57
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9
DPA 1998 Section 1
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11
Ford M, ‘The Data Protection Act 1998’ (n 7) 58
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13
Ford M, ‘The Data Protection Act 1998’ (n 7) 59
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14 The Information Commissioner has a duty to enforce the Act, provide reports to Parliament and
follow Code of Practice as illustrated in Durant v Financial Services Authority15
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The future may increasingly see
conflicts over methods of surveillance replacing traditional conflicts over pay and holidays
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16
The HRA 1998, Article 8 gave rise to respect for private and family life
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18 ‘In Smith and Grady v UK19, the ECHR held that a ban on homosexuals in employment in
the UK armed forces contravened the right to respect for private life
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However, the Court held
that this interference could be justified as ‘necessary in democratic society’
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’22
‘Emerging issues under Article 8 include monitoring email and telephone communications, CCTV
surveillance, employee searches and random drug/alcohol testing
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Simply
storing the employee’s data regarding her private life was a breach of her rights and it was irrelevant that
this information was not used against her in any disciplinary proceedings
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[2003] EWCA Civ 1746
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17
(1993) 16 EHRR 97
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19
[1999] IRLR 734
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21
(1987) 9 EHRR 433
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23
Ibid
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25
[2007] ECHR 62617/00
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Similarly, ‘in Onof v Nikon France26, the French Supreme Court ruled that an employee’s right to private
life extended to private emails received at work, even where the employer had prohibited personal use of
the facilities
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The search of the
emails was authorised in accordance with the university’s own internal rules, and the university was also
entitled to rely on the provisions of the RIPA 2000 and the regulations made thereunder
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The Information Commissioner’s
Code of Practice on monitoring states that the employer should be open about its monitoring activities
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Equally
‘in Jones v Warwick University32, video footage of a claimant which had been secretly obtained was
considered relevant and admissible evidence in court
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’33
The RIPA 2000 and Telecommunications (Lawful Business Practice) (Interception of Communications)
Regulations 2000 has resulted in that such monitoring of calls would be allowed in certain circumstances,
typically if the employee has consented or has knowledge
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It is not advisable for
an employer to rely solely on these implied terms, as it may be difficult to prove what actually is
confidential
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Employers often incorporate this agreement and the
employee’s acceptance into the contract by an express clause
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4164, 2nd October 2001 (99
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942)
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28
[2009] EWCA Civ 38
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30
Jessica Guth, The Practice of Employment Law (ILEX tutorial College Limited, 2011) 39
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32
[2003] EWCA Civ 151
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27

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Privacy in the workplace

The purpose of implementing an internet and email use policy, sets out the employees' responsibilities
when using company internet access in their day-to-day working activities, which enables both employees
and the employer to gain the maximum value from email and the internet, alerts them to the dangers that
can arise to the organisation if the technology is misused and informs everyone of the consequences of
misuse by employees
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She was a
school mentor who had no internet usage policy and claimed her dismissal was a breach of her right to
freedom of expression
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Cases such as these can be avoided if there is a
clear internet policy in place, making it clear what will and will not be acceptable
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’37 Employers should introduce training sessions that will make employees aware of policy and the
potential issues
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This may lead to an employee being put on suspension pending a
formal investigation and may ultimately result in dismissal
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Furthermore, ‘the Public Interest Disclosure Act 1998 (PIDA 1998) now provides employees with
protection from victimisation and dismissal in connection with ‘blowing the whistle’ on illegal practices in
the workplace
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Lewis states that a conventional view of whistle-blowers was that they are
troublemakers who deserve to be punished for disloyalty
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This was a high test, so many employees did not disclose illegal
practices in the workplace for fear they were going to be dismissed for breach of contract
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[2011] EWCA Civ 1518
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37
Ibid
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39
Guth, The Practice of Employment Law (n 30) 40
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41
[1968] 1QB 396
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As well as helping to expose financial

scandals, in some situations whistleblowing may be vital to preserve the health and safety of both
workforce and general public, such as demonstrated in the investigation of the Herald of Free Enterprise
disaster in 1987
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43 However,
immunity from liability is only afforded if the discloser believes on reasonable grounds that the
information is true
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In Street v Derbyshire Unemployed Workers Centre45 an employee’s claim was dismissed,
finding that the disclosures lacked good faith as she was motivated by personal antagonism towards her
manager
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This
places a further hurdle for the whistleblower to surmount to gain statutory protection for their
disclosure
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‘By having a whistle-blowing policy, it conveys the importance that an employer

attaches to identifying and remedying malpractice
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’48
‘However, a survey by Public Concern At Work showed that in 2010, only 38% of those surveyed worked
for companies with whistleblowing policies in place, and only 23% knew that legal protection for
whistleblowers existed
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ERA 1996 Section 43B(1)
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45
[2005] ICR 97, 1
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Available from:
http://www
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com/Articles/29/09/2005/31164/Street-v-Derbyshire-Unemployed-Workers-Centre
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Available from: http://en
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org/wiki/Public_Interest_Disclosure_Act_1998
[Accessed 26/07/2012]
48
Guth, The Practice of Employment Law (n 30) 40
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43

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Privacy in the workplace

tribunals has increased significantly within the past 10 years
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51 Also, ‘volunteers and selfemployed people are not covered, nor are those who, in disclosing the information, commit a criminal
offence
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’52
Although the act has achieved much more employment protection for whistleblowers, the legislation could
be improved to in order to encourage disclosures and the investigation of concerns about wrongdoing
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54

The problem as a result of these pieces of legislation is there is no requirement of

proportionality in relation to balance of rights of workers against employers
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In expanding businesses that rely
heavily on internet and email communication, given the risks involved, it is paramount that these policies
remain to protect employers from misuse by the employee, allowing employers to deal with matters arising
consistently and fairly and in accordance with the law
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These policies can be drafted as
guidance only or can be incorporated into the contract of employment to give them contractual status
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51
Lewis, D, ‘The Public Interest Disclosure Act 1998’, (1998) ILJ 27, 330
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53
Lewis, ‘Whistleblowing at Work: On What Principles Should Legislation be Based?’ (n 40) 193
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7

Privacy in the workplace

STUDENT DECLARATION
I, student number 150064, declare that this piece of work contains 2550 words
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BIBLIOGRAPHY
Books:
Allen R and Crasnow R (2002), Employment Law and Human Rights (Oxford University Press,
Oxford)
Carey P (2004), Data Protection: A Practical Guide to UK and EU Law (Oxford University Press,
Oxford)
Ewing KD (2000), Human Rights at Work (London: Institute of Employment Rights)
Guth J (2011), The Practice of Employment Law (ILEX tutorial College Limited)

Honeyball and Bowers (2008), Honeyball and Bowers’ Textbook on Employment Law (Oxford
University Press, Oxford)
Painter R and Holmes A (2010), Cases and Materials on Employment Law (8th edn, Oxford University
Press, Oxford)
Upex R, Benny R and Hardy S (2009), Employment Law (Oxford University Press, Oxford)
Journals and Articles:
Bilsen B, ‘Search and Surveillance in the Workplace: An Arbitrator’s Perspective’, (1992) Labour
Arbitration Yearbook, Butterworths
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4164, 2nd October 2001 (99
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942)
Smith and Grady v UK [1999] IRLR 734
Street v Derbyshire Unemployed Workers Centre [2005] ICR 97, 1
Legislation:
Data Protection Act 1988
Employment Right Act 1996
Human Rights Act 1998
Regulation of Investigatory Powers Act 2000
Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000
Electronic Information/sources:
BPP Employment law lecture (2012), Privacy in the Workplace
...
bpp
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Available from:
http://www
...
gov
...
Available from:
http://www
...
com/Articles/29/09/2005/31164/Street-v-Derbyshire-UnemployedWorkers-Centre
...
Available from:
http://en
...
org/wiki/Public_Interest_Disclosure_Act_1998 [Accessed 26/07/2012]

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