THIS ISSUE: Cameras and Privacy, Data Breaches, Perceived Disability and Whistleblowing
Lecture theatre cameras an invasion of Privacy
In the case of Antović and Mirković v Montenegro, the European Court of Human Rights (ECHR) considered whether a University installing surveillance cameras in their student auditoriums (to ensure the safety of property and people, and to monitor teaching) constituted a violation of Article 8 of the European Convention on Human Rights. Holding by a majority, the ECHR decided that two professors’ Article 8 privacy rights (right to respect for private and family life) were infringed by the University’s decision to install the cameras.
The Court rejected the domestic court finding that the cameras only captured public teaching areas, noting that “private life” must be broadly interpreted to include professional activities taking place in public. Lecturers taught, interacted and built social identities within auditoriums, therefore they should be treated like any other workplace. The ECHR found no reason to depart from previous findings that workplace surveillance (whether covert or not) amounts to a considerable intrusion into employees’ private lives, which must be respected and therefore surveillance restricted. The decision aligns with guidance from the Information Commissioner which allows covert surveillance of employees, but only in exceptional circumstances.
Supermarket Employee Data Breach
In the case of Various Claimants v Wm Morrisons Supermarket, the High Court has found that a supermarket was vicariously liable for the deliberate and criminal disclosure of personal data by a rogue employee. Collective substantial compensation may be payable under the first group litigation data breach case to come before the Courts under the Data Protection Act 1998. The Judge gave the supermarket leave to appeal to the Court of Appeal and they have indicated they will do so.
EAT Uphold Claim for Breach of Working Time Regulations
The EAT, in the case of South Yorkshire Fire & Rescue Service v Mansell and others, has upheld a tribunal’s decision that it had jurisdiction to make an award for injury to feelings in a claim brought for detriment suffered because of making a complaint of breach of the working time regulations. In this case, firefighters complained that moving to another shift increased journey times, interfered with care obligations, lost free/leisure/family time, congenial working arrangements, disruption to their work patterns and working relationships, and ultimately breached the working time regulations. The EAT rejected the employer’s argument that injury to feelings awards should be limited to protected disclosure cases, noting that an award for injury to feelings should be available to all the forms of detriment under Part V of Employment Rights Act 1996.
Direct Discrimination based on Perceived Disability Case Upheld
In the first case to directly address perceived disability under the Equality Act 2010 (EqA 2010), the case of Chief Constable of Norfolk v Coffey, the EAT upheld a claim for direct discrimination. Evidence showed that the employer perceived that the claimant had a disability in the sense of a progressive condition and, based on this (erroneous) perception, rejected the claimant’s job application. This case confirms that claims based on perceived disability can be brought as direct discrimination claims.
Whistleblowing Protection Decision
In the case of Parsons v Airplus International Ltd, the EAT upheld a tribunal’s decision that an employee’s dismissal was not because she was a whistleblower, but because she had behaved in a rude and irrational manner when communicating her concerns. The employee did not reasonably believe the concerns she raised to be in the public interest, as required under protected disclosure legislation, but had raised them purely out of concern for her own potential liability. The EAT recognised that there may be “hybrid” cases where self-interest is present, but it must not be the sole reason for making the disclosure, as it was here.
Clearly for someone in a compliance role almost everything they raise will be related to matters that may amount to protected disclosures. If dismissing a person in this or a similar role, it will be particularly important for the employer to be able to demonstrate that dismissal is truly separate from the fact of them raising concerns.
The European Commission has published new GDPR guidance ahead of its introduction on 25 May 2018: https://ec.europa.eu/commission/priorities/justice-and-fundamental-rights/data-protection/2018-reform-eu-data-protection-rules_en.
Online guidance is supported by a new online tool to help SMEs with GDPR compliance: http://ec.europa.eu/justice/smedataprotect/index_en.htm
Fit for Work Service
The Fit for Work Service launched by the government in 2014 will end in England and Wales on 31 March 2018 and in Scotland on 31 May 2018 due to low referral rates.
As outlined in its paper “Improving Lives”, the government intends however to improve advice and support both at national and local level on a range of disabilities and long-term health conditions. Working with employers of all sizes, the government will explore how it can effectively bring together information to meet employers and employees’ needs. The “Access to Work” scheme will also be enhanced to include an expectation of equipment moving with an individual between jobs, increased capacity of the Mental Health Support Service and targeted support for deaf workers. The government also intends to promote the Disability Confident Scheme designed to assist recruitment and retention of disabled people.