Is there a lower expectation of privacy for those working in certain professions?
Employees have a right to respect for private and family life, home and correspondence under Article 8 of the European Convention on Human Rights (ECHR). This right is not absolute: it can be interfered with where doing so is in accordance with the law, necessary in a democratic society, and in pursuit of a legitimate aim, such as public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others.
Strictly speaking, private employers are not bound by the ECHR like public authority employers are, but all employers should take the right to respect for privacy into account in disciplinary proceedings because a tribunal or court (as a 'public authority') must interpret employment rights in a way which is compatible with the ECHR. This means tribunals must consider whether ECHR rights have been infringed when determining a matter before them. For example, if a dismissal is based on information obtained in breach of Article 8 ECHR it is likely to make it unfair.
There have been several recent cases in the ECJ and EAT which have grappled with the competing rights of individuals to privacy with the rights of employers to use information gathered from social media and other sources for conduct procedures. For example, the case of Lopez Ribalda and Others v Spain considered the right of a supermarket to covertly monitor its employees via CCTV when there was a suspicion of criminal activity in the workplace. See our article on this case, When will covert monitoring of employees be lawful? here.
The case earlier this year of Q v Secretary of State for Justice considered whether the probation service breached an employee's privacy rights when dismissing her in relation to the alleged safeguarding risk she posed to her own child. See our article, Was a dismissal for failing to disclose the employee's own safeguarding risk to her child unfair and in breach of human rights? here.
A recent case from Scotland has considered the privacy rights of several police officers in the context of their employer's use of WhatsApp messages as part of disciplinary proceedings. The high standards expected of police officers in their professional and personal lives were fundamental to the decision of the courts.
Whilst investigating a crime, police discovered the existence of a WhatsApp group in which several members (and potentially all) were determined to be police officers. The group members shared several questionable posts, including discriminatory and derogatory content and photographs of crime scenes and people who had been detained, in clear violation of police procedure rules.
The police referred the information to the Professional Standards Department within the police service, who subsequently opened disciplinary proceedings against the officers. The officers brought a an application to the Outer House of the Court of Session arguing that the use of the information sent in the WhatsApp group in disciplinary proceedings was a breach of their Article 8 ECHR privacy rights.
The officers' case was dismissed on the basis that they had no reasonable expectation of privacy in respect of the messages exchanged over the WhatsApp group, that the police service had a legitimate purpose to refer the information to Professional Standards, that such action was proportionate, and that it was reasonable for the information to be used in internal disciplinary proceedings against the officers.
The police officers appealed the Outer House's decision.
All the grounds of appeal were dismissed.
The Inner House agreed with the Outer House's conclusion that the police officers had no reasonable expectation of privacy in these circumstances and so their privacy rights had not been infringed. If the officers' right to privacy had been infringed, the court determined that such interference would have been lawful.
Considering the key question of the expectation of privacy, the court was not persuaded by the officers' arguments that the WhatsApp groups had been set up strictly in a friendship capacity, noting that the group names ('Quality Polis' and 'PC Piggies') had a clear link to their jobs, as did items of information posted to the groups. The court also noted that the officers bringing the case said that they were not friends with all the group members and indeed were not entirely sure who all the group members were, implying they were professional and not private groups.
Importantly, police officers in Scotland swear an oath to uphold fundamental rights and treat people equally before the law. The oath also requires officers to uphold the honesty, integrity, authority and respect of the service in Scotland and to report discreditable conduct whether on or off duty.
The link between the WhatsApp groups and the officers' roles, the fact that their role was a public office, and that each knew the groups were comprised of police officers who had sworn a duty to report discreditable conduct, all reduced the expectation of privacy of the WhatsApp group messages in the eyes of the court.
The Inner House agreed with the Outer House's conclusion that a reasonable person would view the messages as 'blatantly sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability[...]' and that the referral of the messages to Professional Standards was made on legitimate grounds of prevention and detection of crime and in order to uphold the reputation of the police service in the eyes of the public.
The court noted that the information had not been obtained by surveillance or deception, but in the course of regular police duties.
Finally, the Inner House concluded that the Outer House judge was correct to determine that the information could be used as part of a disciplinary process because the disciplinary process would allow the officers opportunity to explain their actions and defend themselves against allegations of misconduct.
Public office and expectation of privacy
This case is one of many which considers the Article 8 ECHR right to privacy in the context of law enforcement but is helpful in that it considers this question in the context of a public official's right to privacy in a conduct investigation by their employer and/or professional regulator. It confirms that the fundamental exercise when determining the expectation of privacy is to weigh up the right to privacy in the full context of the particular circumstances, including the position of the individuals concerned and the content of the information.
In this case, several factors combined to lower the officers' reasonable expectation of privacy in respect of the information they shared. The fact that police are public officials and are under a sworn duty to report conduct that may discredit the police service was also a key factor here, given that the WhatsApp group was clearly linked to their work and several, if not all, members of these groups were serving officers.
Interestingly, the Outer House of the Court of Session commented that an ordinary member of the public would have had a reasonable expectation of privacy in using a WhatsApp group, although this question was not examined on appeal and the Inner House cast some doubt on this conclusion.
Application to other professionals
There are numerous members of professional bodies who are subject to specific standards who are not public officials. For instance, solicitors are subject to an obligation to act in a way that upholds public trust and confidence in their profession and the wider legal system. This includes a broad expectation to act with integrity, honesty and without discrimination, in a private as well as in a professional context.
Teachers are subject to Teachers' Standards, part 2 of which requires that teachers 'uphold public trust in the profession and maintain high standards of ethics and behaviour, within and outside school'. This includes a requirement that teachers observe proper boundaries with pupils, have regard to their statutory safeguarding duties, and show tolerance of and respect for the rights of others.
By their nature, standards of this kind will draw into question an individual's conduct both inside and outside of the workplace, which may lead to disciplinary proceedings by an employer and in some cases referral to a professional regulator if their actions have breached those standards.
In these circumstances, an employer will therefore need to consider the Article 8 ECHR privacy rights of an individual when deciding to take internal disciplinary action and when disclosing that information to a regulator. Even where an employee may have a reasonable expectation of privacy, there will be cases where the nature of the conduct involved justifies an interference with that right, for example in a teaching context where there is a safeguarding risk.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.