Employees and Internet Use - Legal Aspects

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This is an extract from a longer talk I gave at the Dublin Solicitors Bar Association, Shelbourne Hotel, Dublin, December 2012

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Employees and Internet Use - Legal Aspects

  1. 1. EMPLOYEES AND INTERNET USEDarius Whelan, Faculty of Law, University College CorkDublin Solicitors Bar Association Seminar, December 2012
  2. 2. BALANCING COMPETING INTERESTS Employee’s Privacy Employer’s Interests Employees do not leave their privacy at the front door when they come to work 2
  3. 3. 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
  4. 4. 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
  5. 5. 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
  6. 6. 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
  7. 7. 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
  8. 8.  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
  9. 9.  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
  10. 10. 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 10 €30,000 to one employee; €36,000 to the other
  11. 11. 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
  12. 12. 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
  13. 13. 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
  14. 14. 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
  15. 15.  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
  16. 16. 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
  17. 17.  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
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