which were unsuccessful in the English courts. On appeal, the Court of Human Rights held that the interference with Pay’s right to privacy pursued a legitimate aim, namely the protection of the employer’s reputation, and was proportionate. He owed to his employer a duty of loyalty, reserve and discretion. His sexual proclivities were his own affair, but he had made them public. However, the Strasbourg court decided that the right to privacy was not necessarily confined to private premises, and could extend to, for example, meetings open to the public but likely to be attended only by a small group of like‐minded persons, for example a meeting of Alcoholics Anonymous. They also held that the criminal nature of an activity did not automatically remove it from the protection of Article 8, where it was unconnected with employment (an example might be the recreational use of illegal drugs in the employee’s off‐duty time).
Alison Halford was Assistant Chief Constable of Merseyside Police. She failed to achieve further promotion in Merseyside and elsewhere, because, she said, of her gender. Eventually she made a complaint to a tribunal, backed by the Equal Opportunities Commission. She claimed that her telephone calls from her office to her solicitor were intercepted. It was not unlawful in UK domestic law at the time for the employer to listen to his employee’s calls on the office telephone. Ms Halford therefore complained to the Strasbourg Court under Article 8 and her complaint was upheld (Halford v. UK (1997)). She had a reasonable expectation that her calls would not be overheard, since the Chief Constable had assured her that she could make private calls on that phone. Legislation is now in place to permit employers to monitor telecommunications at work, but only when employees have been warned that monitoring is in place. The Regulation of Investigatory Powers Act 2000 permits interception of a communication over a telecommunication system if this is a legitimate business practice. The Telecommunications (Lawful Business Practice) Regulations 2000 authorise businesses to monitor or record communications for good business reasons, e.g. for the purpose of quality control, to prevent or detect crime, to investigate or detect unauthorised use of the telephone, emails, or the Internet. The employer must make all reasonable efforts to inform every person who may use the system that interception may take place. In the case of occupational health communications, it is important that agreement is reached with the employer that these will not be monitored. The Information Commissioner in Part 4 of the Data Protection Code of Practice emphasised this point (Chapter 3).
Evidence given in legal proceedings may be challenged as obtained through an invasion of privacy under the Human Rights Act. Jean Jones was employed by the University of Warwick. She dropped a full cash box with a broken lid on to her right wrist, causing a small cut. She said that she had developed a focal dystonia, and claimed damages in excess of £135,000. The defendant’s insurers were suspicious of this claim and hired an enquiry agent who obtained access to the claimant’s home by posing as a market researcher. He had a hidden camera. The defendant’s expert, having seen the films taken in her home, was of the opinion that the claimant had an entirely satisfactory function in her right hand. It was not in dispute that the enquiry agent was guilty of trespass. The issue was whether the illegally obtained films should be admitted in evidence. The claimant argued that they should not be, because they were obtained in breach of Article 8 by invading her home; the defendant argued that they should be, because they were a true record, not manufactured, and without them the defendant would be denied a fair trial under Article 6. The court agreed to admit the evidence as probative, but ordered the defendant to pay the costs of the litigation to establish the admissibility of the evidence (Jones v. University of Warwick (2003)).
In McGowan v. Scottish Water (2005) the employer suspected that McGowan, who lived in a tied cottage close to his workplace, was falsifying his timesheets with regard to call‐out time. They hired private investigators to undertake covert video surveillance of his home from the public road; their suspicions were confirmed and he was dismissed. It was held that this was a justifiable interference with privacy because the employer had a reasonable suspicion that the employee was defrauding public funds and was entitled to investigate.
C v. The Police and the Home Secretary (2007) concerned a sergeant of police who retired on medical grounds in 2001. He claimed that in 1998 he had suffered a back injury as a result of tripping on a carpet in a police station while on duty. His claim was settled out of court for £100,000. He then claimed an injury on duty award to increase his pension. The police force was suspicious and hired a firm of private enquiry agents to film him mowing his front lawn, and also driving his car. No authorisation for these activities was obtained from a senior police officer under the Regulation of Investigatory Powers Act 2000 (RIPA). The Investigatory Powers Tribunal held that such an act of employment‐related directed surveillance did not need to comply with RIPA procedures. The police were not investigating a crime; rather, they were collecting evidence for the purpose of a pension appeal. However, they decided that the Tribunal had no power to adjudicate on whether there was a breach of Article 8 of the European Convention on Human Rights, which was a matter for the ordinary courts.
International Labour Organization
The International Labour Organization (ILO) was founded in 1919 by those nations who had been the victors in World War I, to bring together representatives of employers’ and workers’ organisations and also of governments of participating states. It holds international conferences annually in Geneva and acts as a focus for those who strive to raise standards of protection for workers, not merely in the field of health and safety, but in industrial relations in general. Most countries belong to the ILO, which is the oldest and most experienced international body concerned with the establishment of international labour standards.
The ILO adopts Conventions and Recommendations. Ratification of a Convention amounts to an undertaking that its provisions will be given legally binding force by a legislative enactment. Even then, a government may denounce a Convention at a later date, as the British government has done with laws preventing women workers from being employed at unsocial hours (Chapter 8). A Recommendation does not have to be ratified, but adoption by a government signifies that the government will in the future be guided by the Recommendation if and when it decides to act. The ILO has produced a Convention and Recommendation relating to the provision of occupational health services (Chapter 1). In 2003 the ILO adopted a Global Strategy on Occupational Safety and Health.
Workers’ rights and data protection after Brexit
The European Union (Withdrawal Agreement) Bill 2019–20 (WAB) has at time of writing (January 2020) passed successfully through the House of Commons. As, after the December 2019 General Election, the government has an overall majority in the House, it is almost certain to become law, though the House of Lords may attempt to make amendments. This Bill is a revision of that previously published in October 2019 before the election and no longer contains clauses on the protection of EU‐derived workers’ rights. In the December 2019 Queen’s Speech it was announced that protection for EU workers’ rights would be included in an Employment Bill which at time of writing has not been published. The problem is that, during the transition period after the UK leaves the EU on 31 January 2020 and the end of the transition period, currently fixed at 31 December 2020, a comprehensive agreement about trading arrangements and consequential measures will need to be negotiated with the EU. The EU may be unwilling to agree to provisions that allow the UK to deny workers’ rights that are protected by EU law, for example the right to paid holidays, protection under TUPE, the right to consultation when mass redundancies are proposed, and protection under health and safety and equality laws. Although UK law may already have provided some protection in these areas, EU directives and decisions of the Court of Justice of the European Union in many cases expanded it. If protection of workers is inferior in the UK to that in EU Member States the UK has an economic advantage which the EU may be unwilling to accept in a new trading agreement. The non‐binding Political Declaration negotiated between Johnson and the EU
