EMPLOYEES AND INTERNET USE

Darius Whelan, Faculty of Law, University College CorkDublin Solicitors Bar Association Seminar, December 2012

BALANCING COMPETING INTERESTS

Employees do not leave their privacy at the front door when they come to work

Employee’s Privacy Employer’s Interests

2

EMPLOYER’S INTERESTS / DUTIES Employers have general right to determine

work tasks and control contract performance Employer has property rights in equipment Employers may lay down quality and

behaviour standards Employer must safeguard employees’ health,

safety and welfare Employer has duty of trust and confidence

towards employee

3

PRIVACY Halford v UK (1997):

Assistant Chief Constable – Office phones ‘tapped’ – No warning

She had a reasonable expectation of privacy and so art. 8 had been breached

Copland v UK (2007): Employer (Welsh public college) monitoring

internet usage, e-mails and telephone traffic of Ms.C (employee) without her knowledge

Content not monitored; instead names of recipients etc.

Held: Breach of Article 8

4

Köpke v Germany (2010) Employer had used covert video surveillance

for two weeks to investigate employee for theft

Domestic law required proportionality, etc. ECtHR held complaint under art. 8 manifestly

ill-founded

5

KEY DATA PROTECTION PRINCIPLES Data Protection Acts 1988-2003:

Data must be obtained and processed fairly Data subject must be informed of purpose for which

data are processed Legitimate Processing:

Various categories including Data subject consenting to processing, or processing is for ‘legitimate interests’ of controller without

unduly prejudicing subject’s rights/ freedoms / interests Data must be kept for specified, explicit and

legitimate purposes There must be appropriate security measures Data subject has right of access to data

6

Gresham Hotel (2007) Data Protection Commissioner Case Study 6 of 2007 Covert video surveillance Other employees being investigated, not this

particular employee Gardaí were not involved Commissioner found data was being processed in a

manner incompatible with its purpose Covert surveillance would require actual involvement

of Gardaí or intention to involve them Amicable resolution reached

7

Ali v First Quench (2001) Covert video surveillance in off-licence office –

thefts of stock – Mr A prime suspect Mr A was filmed having sexual intercourse in

office while shop open Dismissal fair

McGowan v Scottish Water (2004) Video surveillance of employee’s house, due to

suspicion of timesheet irregularities Dismissal fair; did not breach privacy

8

Mehigan v Dyflin Publications (Ireland, 2002) M received 3 pornographic images by e-mail and

forwarded them on to someone else Tribunal did not accept this was a one-off incident.

Evidence of other material on computer inc. sexual cartoons

E-mails can often cause offence The EAT will be heavily influenced by the existence of a

written policy reserving right to dismiss Unlikely dismissal permissible otherwise Possible exception – downloading obscene pornography

(Distinction between facts here and ‘exceptional’ cases unclear)

Onus on employer to introduce policy Dismissal unfair, but employee contributed substantially €2,000 for unfair dismissal plus €2,800 in lieu of notice 9

Murray and Rooney v ICS Building Society (2011)

Two employees allegedly circulated pornography by email

EAT found investigation flawed Investigation took place without their

knowledge; they could not make submissions on terms of reference

Investigation involved only small sample of emails and did not include employees who had deleted emails

Dismissal was disproportionate €30,000 to one employee; €36,000 to the

other

10

Kiernan v A Wear (2008) Employee posted derogatory comments on

BEBO E.g. Regarding manager “She called me a

liar. I f**ing hate that c**t” Visible to customers Fair investigation held. Employee dismissed EAT found dismissal disproportionate Employee contributed to her dismissal €4,000 for unfair dismissal 11

Walker v Bausch and Lomb (2009) Employee wrote on intranet: “500 jobs to be

gone at Waterford plant before end of first quarter 2008”

No proof that employee had received intranet policy

Fair hearing held. Employee dismissed. EAT found dismissal disproportionate Employee greatly contributed to situation €6,500 for unfair dismissal

12

O’Mahony v PJF Insurances (2011) Facebook – Employee called manager a

“bitch” At first, the page was accidentally seen Employee then allowed full access A number of disparaging comments Suspended pending investigation EAT – Significant breach of trust which

made employment untenable Employer acted reasonably. Dismissal fair.

13

GUIDANCE

Council of Europe Recommendation R (89) 2 on Protection

of Personal Data Used for Employment Purposes 1989

International Labour Organisation Code of Practice on Protection of

Workers’ Personal Data 1997

Article 29 Working Party Opinion 8/2001 on processing of personal data in

the employment context Opinion 4/2004 on video surveillance

Data Protection Commissioner (Ireland), Monitoring of Staff, Guidance Note, 2004

Data Protection Commissioner (Ireland), Data Protection and CCTV, Guidance Note, 2004

15

DRAWING UP A POLICY Review legislation, guidance and cases Clarify purposes of monitoring (if any) – must

be proportionate Notify purposes of monitoring to employees –

e.g. state if can be used for disciplinary purposes; may ultimately lead to dismissal; misconduct v gross misconduct

Clarify ownership of Twitter followers, etc. Perhaps permit reasonable personal use of e-

mail / internet / social media Regular reminders of policy Other issues – see material cited

16

References - See list provided

Contact Details: Dr Darius Whelan, Faculty of Law, University College Cork http://research.ucc.ie/profiles/B012/dwhelan Email d.whelan@ucc.ie Twitter: @dariuswirl

17