Morrisons Supermarkets are breathing a sigh of relief since the Supreme Court ruling that they are not vicariously liable for a deliberate data breach by a disgruntled ex-employee which exposed personal data of almost 100,000 of its employees. Vicarious liability is when an employer is held responsible for something done by an employee in the course of their employment. In WM Morrison Supermarkets plc v Various Claimants  the Supreme Court considered the circumstances in which an employer is vicariously liable for the conduct of its employees and whether the Data Protection Act 1998 (DPA 1998) excluded vicarious liability for such claims…..Read more
Every person has a right to privacy at work under Article 8 of the European Convention on Human Rights and The Human Rights Act 1998. In light of this, you can expect a reasonable amount of privacy at work.
In Garamukanwa v United Kingdom the employer relied on material found on the employee’s mobile phone in disciplinary proceedings and subsequent dismissal. The European Court of Human Rights considered whether his right to privacy under Article 8 of the European Convention on Human Rights (ECHR) had been breached.
The Court said that the right to privacy can apply in relation to communications sent from a workplace email address, or which touch on both professional and private matters. In this case, Garamukanwa did not have a reasonable expectation of privacy in private communications sent to a work colleague, which had been discovered as part of a police investigation into allegations of harassment and passed to the employer for use in disciplinary proceedings. At the time he sent the messages the employer had already informed him that a grievance had been raised against him and that his conduct was unacceptable, so he could not have reasonably expected that his subsequent communications linked to the allegations would remain private. The employer was entitled to rely on these communications to justify dismissal for gross misconduct.
In BC v Chief Constable Police Service of Scotland , the Court said that although ordinary members of the public may have a reasonable expectation of privacy when sending messages to a WhatsApp group, the position was different for police officers subject to professional standards applicable both on and off duty. In this case police officers sent offensive messages to a WhatsApp group of other officers, all of whom were under a positive obligation to report this type of message.
Police officers must not do anything that is likely to interfere with the impartial discharge of duties. The employer was therefore entitled to use the messages (discovered during the course of a separate criminal investigation) as the basis for misconduct proceedings.
This means that if you work in a regulated industry or profession where a higher standard of personal conduct is required, you might not be entitled to an expectation of privacy when you send messages to a social media group.
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