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E Law Developments
•Employees and Internet Use
Darius Whelan, School of Law, University College Cork
Southern Law Associat...
Balancing Competing Interests
2
Employee’s Privacy Employer’s Interests
2
Principles
•Staff do not lose their right to privacy when they cross the threshold
of the workplace
•Personal data should ...
Privacy
4
• Halford v UK (1997):
•Assistant Chief Constable – Office phones ‘tapped’ –
No warning
•She had a reasonable ex...
Bărbulescu v Romania (2017)
•Mr B. was employed by a company as an engineer in
charge of sales.
•Mr B’s employer strictly ...
• ECtHR found that article 8 had been violated.
•The Romanian courts had not struck a fair balance between
Bărbulescu’s ri...
7
Gresham Hotel (2007)
• Data Protection Commissioner Case Study 6 of 2007
• Covert video surveillance
• Other employees b...
8
Mehigan v Dyflin Publications (2002)
• M received 3 pornographic images by e-mail and forwarded them on
to someone else
...
9
Murray and Rooney v ICS Building Society (2011)
•Two employees allegedly circulated
pornography by email
•EAT found inve...
10
O’Mahony v PJF Insurances (2011)
•Facebook – Employee called manager a “bitch”
•At first, the page was accidentally see...
Kepak Convenience Foods v O’Hara (2018)
•Ms O’Hara’s written contract stated that her working hours
were 40 hours per week...
12
Guidance
•Council of Europe
•Recommendation on the
Protection of Personal Data in
the Workplace (2015)
13
14
•Article 29 Working Party
•Opinion 2/2017 on Data Processing at Work
•Data Protection Commissioner (Ireland),
Monitorin...
Drawing Up a Policy
15
• Review legislation, guidance and cases
• Clarify purposes of monitoring (if any) – must be
propor...
d.whelan@ucc.ie
www.ucc.ie/law/courses/
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Employees and Internet Use - Legal Perspective

E Law Developments: Employees and Internet Use
Southern Law Association event, Cork, September 2019
Darius Whelan, School of Law, UCC
IT Law Clinic
http://www.ucc.ie/law/courses/

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Employees and Internet Use - Legal Perspective

  1. 1. E Law Developments •Employees and Internet Use Darius Whelan, School of Law, University College Cork Southern Law Association Event, Cork, September 2019
  2. 2. Balancing Competing Interests 2 Employee’s Privacy Employer’s Interests 2
  3. 3. Principles •Staff do not lose their right to privacy when they cross the threshold of the workplace •Personal data should be only processed for specified and lawful purposes •Employers have a duty of care in tort to provide employees with a safe system of work •Employers must manage and conduct work, as far as is reasonably practicable, in such a manner as to protect the health, safety and welfare of employees (Safety, Health and Welfare at Work Act 2005) •Working Time is regulated to protect employees’ health and safety 3
  4. 4. Privacy 4 • 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
  5. 5. Bărbulescu v Romania (2017) •Mr B. was employed by a company as an engineer in charge of sales. •Mr B’s employer strictly prohibited employees’ use of work equipment for private reasons. •Employer told Mr B. that he suspected he was not complying with the prohibition, on the basis of monitoring his account. Mr B. denied non-compliance. •Employer provided him with a transcript of his Yahoo Messenger communications, which included personal communications with his brother and fiancée. •Mr B. was then dismissed. 5
  6. 6. • ECtHR found that article 8 had been violated. •The Romanian courts had not struck a fair balance between Bărbulescu’s right to a private life and his employer’s right to ensure he was following work rules. “An employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary.” •The court did not award compensation. (Mr B. had claimed €59,900 pecuniary damage and €200,000 non-pecuniary damage). The court awarded €1,365 costs. 6
  7. 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
  8. 8. 8 Mehigan v Dyflin Publications (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. 9. 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 9
  10. 10. 10 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. 10
  11. 11. Kepak Convenience Foods v O’Hara (2018) •Ms O’Hara’s written contract stated that her working hours were 40 hours per week. She claimed that in fact she was working 60 hours per week. •She produced sample emails regularly sent between 8 pm and midnight. There was no system to record hours of work. •The employer argued that Ms O’H. could have comfortably completed her work within 40 hours. •Labour Court: The employer was aware Ms O’H. was working excessive hours and did not take steps to prevent this. •The Organisation of Working Time Act 1997 states that an employer “shall not permit…” excessive hours. •Compensation of €7,500 was awarded. 11
  12. 12. 12
  13. 13. Guidance •Council of Europe •Recommendation on the Protection of Personal Data in the Workplace (2015) 13
  14. 14. 14 •Article 29 Working Party •Opinion 2/2017 on Data Processing at Work •Data Protection Commissioner (Ireland), Monitoring of Staff, Guidance Note, 2004 [no longer on website] •Data Protection Commission (Ireland), CCTV: Guidance for Data Controllers, 2019
  15. 15. Drawing Up a Policy 15 • 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
  16. 16. d.whelan@ucc.ie www.ucc.ie/law/courses/

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