When can social media posts be used as evidence? – A Snoopy character study

Charlie BrownSocial media. Oh my. We all know the usual story of an employee getting ‘caught out’ by a social media post. But, in reality, social media is a complicated beast and never quite as straightforward as it appears. Can an employer normally rely on social media posts? Probably. Can it always rely on incriminating social media posts? No!

Before we get into it fully, it’s important to consider that even defining ‘social media’ is tricky nowadays. Raise your hands if you think you’re pretty au faux with social media websites? Good, good. So you’ve heard of all of the following: Facebook, WhatsApp, Tumblr, LINE, Telegram, Foursquare and Snapfish. I thought not… (Bonus point if you actually did!)

Now, we all know the standard tale. An employee posts something anti-employer on their social media or posts something that proves dishonest conduct and the employer then pulls out their social media policy, invites the employee to a Disciplinary hearing and a formal sanction (up to and including dismissal) is given. But, in reality, a lot depends on how that information comes to light.

What are the likely implications of Brexit on UK Employment Law/HR practices?

Employers may not be aware that much of the current legislation in place to protect employee rights actually derives from the European Union – for example, working time regulations, rights of the employees on a business transfer (TUPE) and family leave rights to name but a few. Indeed some Politicians for the ‘Leave Campaign’ will no doubt have argued that such laws were inhibitive to British businesses and produced too many rules and regulations having a negative effect on both time and profits.

What is likely to happen?

In reality it is doubtful that the UK Government would look to repeal any employment law which implements minimum EU requirements, the reason being that many of these laws simply complement existing UK law (equal pay rights for example). In addition, much of our existing employment law simply reflects good/acceptable practice in business (or indeed life generally!) such as the right not to be discriminated against on the grounds of sex, age, disability etc. Furthermore some UK Laws actually go above and beyond the minimum requirements of EU legislation – in respect of holidays for example, the EU Working Time Directive 2003/88/EC only requires EU Member States to provide for a minimum of 20 days’ annual leave for employees, whilst the UK statutory minimum leave entitlement is actually 28 days inclusive of normal bank and public holidays.

As a final point it is worth noting that despite a (potential) Brexit, the UK will still need to maintain strong trading relations with Europe. If the UK is a member of the EEA (European Economic Area) it would be required to remain subject to many aspects of EU employment law.

In light of the above, whilst in my view the majority of employment law legislation will not be repealed or significantly changed, the UK Government may look to alter some employment law that UK businesses have struggled with. The following are areas that may be most susceptible to change:

European Court rules that private messages at work can be read by employers

As widely reported a couple of weeks ago the European Court of Human Rights has handed down a significant judgment in the Romanian case of Barbulescu which confirms the right of employers to access the private communications of employees while they are at work.

Mr Barbulescu, a Romanian national living in Bucharest, worked for a private company as an engineer in charge of sales from August 2004 to August 2007. At his employer’s request he set up a Yahoo Messenger account  to be used as a means of replying to clients’ enquiries. On 13 July 2007 he was informed that his Messenger communications had been monitored from 5 to 13 July and this revealed that he had been using the account for personal purposes. Mr Barbulescu countered by suggesting that the monitoring of the account was criminal activity. The analysis showed that he had exchanged messages with his fiancé and his brother and the messages related to personal matters including his personal health and sex life. His employment was terminated on 1 August 2007 for breach of the employer’s regulations which included a ban on using electronic media for personal purposes.

Mr Barbulescu brought a claim in the Bucharest County Court and failed on the basis that the employer’s regulations were not illegal and correct procedures were followed. He appealed and sought to rely on Article 8 of the European Convention on Human Rights (right to respect for family and private life). The Bucharest Court of Appeal again found in favour of the employer. In the ECHR it was noted that Mr Barbulescu alleged that his personal Yahoo Messenger account had been accessed by the employer in addition to the analysis of the work account. He maintained that he was entitled to expect privacy, given the very nature of the software in question.

There was a balance to be struck between respect for the individual’s private life and correspondence and the employer’s legitimate interests as a private company. the domestic courts had found that the applicant had used Yahoo Messenger on the company’s computer and that he had done so during working hours. This is what established the disciplinary breach and the consequent lawful termination of employment.

The employer had acted within the scope of its disciplinary powers. It was not unreasonable for an employer to want to verify that its employees are completing their professional tasks during working hours. Further, the employer’s monitoring was limited in scope and proportionate.

However the decision should not be seen as providing carte blanche for employers to snoop on their employees’ private communications.

Justice Secretary Grayling to use EAT case as political challenge to EU law

Last October Joshua Rozenberg reported in The Guardian that a recent case concerning Moroccan workers in diplomatic missions in London resulted in failed claims for unfair dismissal, unpaid wages and breaches of the Working Time Regulations because the employers were able to claim state immunity. I commented about the case last November.

It has now emerged that the Justice Secretary, Chris Grayling, intends to use the case as a way of challenging “creeping” increases in the influence of EU law in British cases. It is part of the Tories’ wider campaign to be seen to be taking a strong line on Europe in the run up to elections and in the face of what is regarded as a significant challenge from UKIP.

While much is made of the effect of the European Convention on Human Rights, particularly in the context of immigration cases, these decisions only have to be taken into account by courts in the UK. However legal practitioners, particularly in the field of employment law, have been dealing with the direct application of European law for decades. Cases are often referred to the European Court for guidance and decisions of the European Court can be directly applied in employment cases in England and Wales.

The crucial difference is that some claims can be brought based on the direct application of EU law. That happens with claims, such as these, based on the EU’s Charter of Fundamental Rights, enshrined in UK law by virtue of the Lisbon Treaty in 2009. Significantly these rights would remain even if the UK withdraws from the European Convention on Human Rights.

we are above the law – or are we?

Under the State Immunity Act 1978 (“the SIA”), sovereign states are not generally subject to the jurisdiction of UK courts and tribunals. The point is well demonstrated by the extraordinary extent to which the London Congestion Charge is ignored by diplomats. Disputes relating to contracts of employment, and related statutory rights, are carved out from that general immunity, subject to some exceptions. The upshot of those exceptions is that nationals of the sovereign state, and non UK nationals and residents employed in the UK by a sovereign state (for example embassy staff) cannot, under the 1978 Act, make unfair dismissal claims, discrimination claims or wages claims.
Thus it was that two Moroccans, one a cook working in the Sudanese embassy and the other a domestic worker in the Libyan embassy both had their claims (ranging from unlawful deductions to unfair dismissal) rejected by Employment Tribunals. Both appealed to the Employment Appeal Tribunal in Janah v Libya, arguing that they had been denied their right to a fair trial of their cases under the European Convention on Human Rights and analogous provisions of the EU Charter.
Under the Human Rights Act 1998, UK courts are obliged to read domestic legislation in a way compatible with rights under the Convention. Although accepting that there had been a breach of the right to a fair trial, this was not something the Employment Appeal Tribunal was prepared to do in a case where the SIA set out to restrict access to the court in defined circumstances. To read words into the SIA to reverse that intention would cross the critical line between interpretation and legislation.
The essential principle and scope of the Act is that it intends to restrict a right of access to the court in a situation in which that would otherwise be available. That is the inevitable effect of granting immunity from proceedings. Lord Rodger observed…that however powerful the obligation in sub-section 3 (1) of the HRA might be it did not allow the courts to change the substance of a provision completely, “to change a provision from one where Parliament says that X is to happen into one saying that X is not to happen”. Where Parliament has set out a clear list of those in respect of whom a plea of immunity will fail, and those in respect of whom it will succeed, it would in my view cross the critical line between interpretation and legislation to alter the list by removing one category from the “yes” camp, so as to place it in the “no” camp. Given that the overall approach is deliberately to limit access to justice in certain cases, there seems to me to be no proper interpretative scope for altering the criteria defined.
The EU Charter sets out general and fundamental principles, and domestic courts are required to disapply rules of domestic law which are incompatible with these, even in a dispute between private litigants.

snooping on employees

If you are an urban dweller in the UK, according to research carried out for The Times, you should expect to be photographed as many as 300 times a day. Combine that with the numerous profiles maintained by advertisers and others based on your internet browsing behaviour and goodness knows what information held by the NSA and it is reasonable to assume that what limited rights to privacy used to be enjoyed have eroded almost out of existence.
However, the right to private life is enshrined in the European Convention on Human Rights (ECHR) and applies equally to employment law claims as it does in other areas of law. The case of City And County Of Swansea v Gayle led to consideration of how the right to private life sits alongside the right of an employer to supervise its employees. Swansea Council employed an enquiry agent to keep tabs on an employee they suspected of playing squash during his working hours, and dismissed him when presented with evidence that he was to be seen at his local leisure centre instead of at work on Thursday afternoons. He made a number of claims, most of which failed because of his downright dishonesty. However, the Employment Tribunal found that he had been unfairly dismissed, on the basis that his right to privacy had been infringed, but without awarding any actual compensation.
The Employment Tribunal took the view that the employer had taken its investigations too far so that, once unauthorised absence was established, covert surveillance was disproportionate and unjustified. There had been a breach of Article 8 ECHR and the employer had not paid sufficient attention to its obligations under the Data Protection Act.
On appeal to the Employment Appeal Tribunal EAT President Langstaff disagreed with the Employment Tribunal on just about every point made concerning the finding of unfair dismissal:

new employment law popping up in the most unlikely locations

As the Enterprise and Regulatory Reform Bill wends its way through parliament, the government keeps adding miscellaneous bits and bobs to it. Perhaps most noteworthy are the proposals to implement regulation of the Press post-Leveson by inserting amendments which appear entirely out of context, primarily because that is precisely what they are!
New employment law is creeping in by a similar method. Two recent additions that enhance the rights of whistle-blowers and extend protection to employees dismissed on the ground of political opinion have appeared in the last few weeks
One set of amendments to the Bill have been prompted by the fallout from recent high profile issues within the NHS, and are aimed at strengthening protection for whistle-blowers. They will:
– introduce a provision whereby the detrimental acts of one co-worker towards a whistle-blower will be treated as being done by the employer, thus making the employer responsible (vicarious liability);
– add a requirement for protected whistleblowers to be “acting in the public interest”;
– remove the requirement for disclosures to be made in good faith (while at the same time providing power for tribunals to reduce compensation by up to 25% if they are not made in good faith); and
– provide a defence for an employer who is able to show that they took all reasonable steps to prevent the detrimental treatment of a co-workers to towards another who blew the whistle.
These changes have resulted primarily from the case of NHS Manchester v Fecitt. Three nurses who raised concerns about the qualifications of a colleague were subjected to victimisation

a well-meaning homespun impression of human rights

Hill v Governing Body Of Great Tey Primary School is another high profile case which I mentioned briefly last month. Since it concerns disclosure of information and that is such a hot topic at the moment the decision is, I believe, worth further analysis, particularly in terms of the possible application of the European Convention on Human Rights The case concerned a dinner lady who was dismissed for breach of confidentiality after telling parents about a nasty bit of playground behaviour involving their child (the innocent party) without permission, and then going to the local press about it when she was suspended. The child had been tied to a railing in the playground and whipped across the legs by other pupils. There were red marks on her legs and rope burns and scratches on her wrists.
When she was sacked she made an unsuccessful whistle-blowing claim, and a successful unfair dismissal claim.
An Employment Tribunal found that she had been dismissed unfairly because the investigation and disciplinary process before dismissal were unfair, but that she would have been dismissed within a couple of months had a fair procedure been followed – and she was also guilty of 80% contributory fault, reducing her compensation accordingly. The Tribunal concluded that she would have been dismissed fairly after two months if proper procedure had been followed, and taking into account in addition the 80% deduction on account of her contributory conduct, awarded her £49.99
The Employment Appeal Tribunal (EAT) overturned the decision and remitted it for a rehearing.

Poundland and (not) human rights

It was difficult to miss the near ubiquitous reporting of the Court of Appeal’s decision in the case of Reilly & Anor, R (on the application of) v Secretary of State for Work and Pensions, in which it quashed the Jobseeker’s Allowance (Employment and Enterprise) Regulations 2011 SI 2011/917. Contrary to the impression given by (some of) the media, the Court did not find that there was any breach of the human rights of unemployed people who had been compelled to undertake unpaid “work experience” to avoid having their jobseeker’s allowance withdrawn. Rather, there had been a failure to introduce these workfare programmes within the scope of any primary legislation. In particular, the “job seekers” had been misled about how long they could lose benefits for if they did not agree to participate.
In fact the Court of Appeal specifically made it clear that there was nothing wrong, in principle, with having such schemes. Lord Justice Pill summarised the position as follows:
A policy of imposing requirements on persons receiving a substantial weekly sum, potentially payable for life, is readily understandable. Equally, the means sought to achieve that end are understandable; claimants should be required to participate in arrangements which may improve their prospects of obtaining remunerative employment. Provided schemes “are designed to assist [claimants] to obtain employment” and to “[improve] their prospects of obtaining employment”…sanctions for failing to participate are understandable. Whether a particular arrangement meets those statutory requirements…is susceptible to challenge by judicial review, but that stage has not been reached. The issue is whether the Scheme named in the Regulations satisfies the requirements for specificity in section 17A by way of being “prescribed”.

rights to a hearing by an impartial and independent tribunal

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) is a useful case looking at the extent to which Article 6 rights under the European Convention on Human Rights will be engaged in NHS disciplinary procedures. It concerns a consultant dismissed for misconduct by the Chief Executive of the Trust he worked for, who appealed unsuccessfully against his dismissal to an external appeal panel. The reasons for dismissal included refusing to agree to a “re-skilling” plan of action proposed by the NHS Trust employing him after a long period of suspension (five years!).

Dr Mattu challenged the dismissal, saying that it had an impact on this ability to practice as a doctor, and so he had a right to have his dismissal considered by an impartial and independent tribunal under the Convention. He failed.

Lord Justice Stanley Burnton identified the issues concerning the overlap between Article 6 and employment aspects as follows