In the Niemietz, Halford, Copland and Barbulescu cases, the European Court of Human Rights ruled on privacy in the workplace.[1] The employee retains privacy in the workplace thanks to the protection of Article 8 of the Convention on Human Rights. Always? Or is there also a limit to the reasonable expectation the employee may have that his privacy must also be observed and respected by the employer in the workplace? On May 14 this year, the Court issued its ruling.[2]
Mr. G., employed by Trust, had a relationship with a Trust employee, Ms. M, until June 2012. After the relationship ended, he sent emails not only to her but also to other employees. With regard to Ms. M., it mainly involves harassment and stalking. With regard to the other employees, it mainly involves malicious emails. Some of these e-mails were sent anonymously. Later it will turn out that some of these anonymous e-mails also came from Mr. G.
Ms. M. files a complaint with her supervisor. The latter informs G. that his emails are inappropriate. This does not prevent G. from continuing his campaign. M. then files a police report. The police investigate the case and come to the conclusion that a large part of the anonymous messages were sent by G.. This information is passed on to Trust. Trust starts disciplinary proceedings against G. and suspends him. Ultimately, G. is dismissed for misconduct, which the disciplinary proceedings reveal. During the hearing at the disciplinary tribunal, G. still provides personal emails and WhatsApp correspondence between him and M.
G. claims in proceedings that the dismissal was unfairly made and he argues that the employer violated Article 8 of the Convention on Human Rights (ECHR) because information related to his private life was used as evidence by the employer. G. claims that he should have reasonably expected the private material to remain private. Moreover, he does not complain about the disclosure of the information by the police or by the disciplinary board to Trust. In the national courts in the United Kingdom, G. is not vindicated. He then takes the case to the European Court of Human Rights (from now on: Court).
The Court initially refers to existing case law. In the workplace, the employee retains privacy. But in this case, the employee should not have reasonably expected the information and private emails and WhatsApp messages to remain private. After all, it had been quite some time since Trust had informed G. that he was acting inappropriately. In doing so, G. did not seek to challenge the use of the information during the disciplinary proceedings. Indeed, G voluntarily submitted private communications. All this means that the Court concludes that G.'s complaint is inadmissible.
It is settled case law of the Court that an employee has "a reasonable expectation of privacy" in the workplace. As an employee, you do not sacrifice your expectation of privacy when entering the employer's premises like taking off your coat. That is no different after this Court ruling. The significance of this Court ruling is that there is a limit to that 'reasonable expectation' based on the particular circumstances of the case, though. Sometimes the employee cannot expect that the information obtained by the employer may not be used. There is then no violation of Art. 8 ECHR. The ECtHR did emphasize several times in the judgment that it is about the special circumstances of this case ("... in that context...", "... in the circumstances..."). What does remain strange is that the Court seems to give the employer a free pass to not pay attention to the use of information when the employee has not protested or objected to the use of private data in a previous proceeding, in this case before the disciplinary tribunal. The employee did not seek to challenge these records before the disciplinary tribunal, the court said. Of course, the fact that the employee has not objected to its use should not mean that the employer no longer has to heed the employee's use of private data or that the employee thereby gives some sort of consent to its use.
[1] Niemietz (ECHR 16 December 1992, NJ 1993/400); Halford ECHR 25 June 1997, NJ 1998/506), Copland (ECHR 3 April 2007, NJ 2007/617), Barbelescu (ECHR 5 September 2017, JAR 2017/259)
[2] ECHR 14 May 2019, ECLI:CE:ECHR:2019:0514DEC007057317, JAR 2019, 206
This article can also be found in the Privacy in the Workplace file
