Workplace Technology: New rules for a new era - A view from the UK- Annual Review 2015

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

This article is an extract from our Annual Review 2015.

Workplace technology is blurring the boundaries between personal and professional lives. Our employment partners shed light on who's watching whom...

A view from the UK by Melanie Lane

Employment tribunals have to date been relatively sympathetic to employers in cases triggered by the challenges of workplace digitalisation

For nearly two decades, UK employees have enjoyed certain rights to privacy and freedom of expression in the workplace under the protection of the 1996 Employment Rights Act and the 1998 Data Protection Act.

But in light of recent data breaches that have been damaging to organisations' reputations - Edward Snowden being the most high-profile case in point - the pendulum appears to be swinging back in favour of employers.

UK employment tribunals have not been sympathetic to privacy or freedom of expression arguments from employees dismissed for misconduct uncovered via digital communications tools - particularly when data security is compromised.

The UK courts increasingly accept that companies have an obligation to protect their data - but actions they take to do so must be proportionate to the risk of the breach. Because there is no clear definition of 'proportionate', an employer must assess the impact its proposed actions will have on employee and data protection, and aim to achieve a balance between both. Some businesses, such as large defence firms, will be in a stronger position than others, such as small retail businesses.

Digital challenges

This trend is good news for those employers wrestling with the mounting challenges posed by digital communications technology; however, questions remain. New technological developments, such as predictive analytics software that flags changes in patterns of behaviour, allow even more sophisticated levels of monitoring than that which has previously been possible; but do these technologies fall on the right side of the law - particularly when employees have reasonable expectations of privacy both inside and outside the workplace?

And when employees share derogatory views about their employer or colleagues, or even personal discriminatory views, on social media, can employers use this evidence to discipline or even dismiss the offending employee?

Increasingly, instances of misconduct uncovered via social media are posing problems. In one recent case we dealt with, a senior employee was running his own networking business alongside his day job - in breach of his employment contract. When he publicised his business via LinkedIn, colleagues who were connected to him on the social media platform alerted his employer. The employee resigned before he could be dismissed, but had the case gone to an employment tribunal could the LinkedIn evidence have been used?

The increasing trend for employees to bring their personal electronic devices to work and connect them to the company's secure network has its benefits: for example, reducing IT equipment costs and increasing engagement from employees who are happier using devices they are familiar with. But how can employers balance these benefits with the need to adequately protect their and their customers' confidential corporate information?

Legislation lacking

Existing UK law provides general principles on issues such as data protection and employees' rights to privacy, but no specific answers to these digital era questions. Meanwhile, workplace technology continues to develop at a frightening pace and many employers are left feeling somewhat at sea.

The proposed new EU Data Protection Directive is expected to address the general challenges posed by the digital world, but the rules governing processing in the employment context will be left to national governments.

The Information Commissioner's Office, which is responsible for data protection in the UK, has started to issue specific but limited guidance for employers on issues such as social media usage.

What is proving to be more useful is the reasonable body of case law that is building up - on social media misuse in particular. Based on this, employers can generally rely on social media posts that reveal employee misconduct as evidence in employment tribunals. Tribunals tend to be pragmatic about what evidence is permissible - but it is important to note that the usual unfair-dismissal principles still apply.

Employers that have a detailed social media policy in place and can demonstrate that they have followed proper disciplinary procedures prior to a dismissal will find themselves in the best possible position.

They also have culture on their side. Privacy may be a strongly held value for many of the UK's European neighbours, but within its own borders - home to an intrusive press - that argument holds much less weight.

Click here to view an electronic copy of our Annual Review 2015.