Privacy rights in employment

Ball, Yvonne (2008) Privacy rights in employment. Doctoral thesis, University of Central Lancashire.

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This thesis undertakes to research the development of domestic legal protection for privacy rights within employment. Unusually for a current work, it does this by returning to the genesis of the protections. The work challenges pervasive arguments that the notion of confidence did not protect privacy and exceptionally argues that the earliest incarnation of the notion of confidence was well equipped to protect private and personal information against disclosure. The thesis puts forward the novel view that the problems that have arisen in providing domestic protection for such information, in the
absence of a right to privacy, are the result of an unfortunate narrowing of the original notion. This position is underpinned by the contention that a number of cases misinterpreted the nature of the original tort and did not fully recognise the requirement to provide protection against the acquisition of personal information. The historical analysis contributes to current knowledge by providing an alternative interpretation of the historical legal framework. This analysis provides an unorthodox assessment of the opportunities provided to the courts by the notion of confidence, to enhance both the
theory and practical impact of the protection of privacy rights within employment
Furthermore the thesis evaluates a broad range of case law from the European Court of Human Rights. These include general privacy cases, those involving wrongdoers as well as general employment cases. These cases are used to identify any consistent themes or conflicts in the application of the right to privacy. The evaluation produces a highly developed analysis and uncovers the latent significance of employment policies in both the protection of and the intrusion into, an employee's privacy. Most notably and distinctively the thesis identifies the important role that a well-crafted policy can have in
augmenting an insubstantial legislative framework, provided that some legal basis provides the foundation for the policy. This evaluation also exposes the implications of any policy, which provides the basis for an interference with an employee's privacy and unconventionally highlights that the mere existence of such a policy can of itself amount to an intrusion, whether or not it is put into practice.
Moreover, the thesis considers whether the incorporation of the right to privacy into domestic law has any impact upon private sector employers and employees. It heightens knowledge of the positive obligations placed upon the state and the courts to protect the right to privacy of all individuals against intrusions by the state and significantly against intrusions by other individuals or private sector organisations. The thesis therefore provides a valuable addition to current understanding of the interventionist and rigorous protections for privacy rights within employment, provided by the Strasbourg Court.
This in turn provides the foundation for the unique evaluation of how effectively the right to privacy is incorporated into current domestic law.
The thesis has taken the valuable opportunity provided by the tenth anniversary of the publication of the Human Rights Act 1998 to consider its impact upon privacy rights within employment. It takes advantage of the occasion to re-evaluate the categories of confidence and privacy and to analyse the principles underpinning the notions within domestic courts. The work exceptionally compares the development of domestic employment law with the development of general civil and criminal cases. This is an effective structure, which facilitates the development of arguments outlining how privacy rights within employment can be more effectively recognised and protected.
The thesis does not shirk the challenges posed by the complex and difficult piece of legislation known as the Regulation of Investigatory Powers Act 2000, a particularly puzzling statute'. 1 It singularly and painstakingly reviews its provisions and questions whether accepted interpretations are correct or workable. The work offers an independent analysis of the rationale and application of its terms and brings to light the finding that despite its name Part II of the Act does not provide any powers and does not regulate the use of any existing powers but merely provides a framework, by which,
intrusions may be undertaken by public authorities 'in accordance with the law' where there is no other statutory basis for the interference. The thesis makes an interesting case that other than where it creates criminal offences and civil liabilities for the interception of communications2, it has little if any effect upon the monitoring of employees, whether in the public or private sectors. The thesis also evaluates the Data Protection Act 1998 and The Employment Practices Code. It originally asserts that the Act and the Code provide the statutory basis for employers to intrude into the private lives of employees
and prospective employees 'in accordance with the law' where it is necessary and proportionate to so; providing the employer has established and published policies that make the intrusion foreseeable in the circumstances.
The fact that these arguments need to be evaluated and explained, naturally leads to the explicit conclusion that the incorporation of the rights protected by Article 8 in the statutory framework have failed to supply the necessary clarity to provide forseeability or to give, strengthen or explicitly restrict privacy rights within employment. Additionally, the creative comparison with the general privacy and criminal cases brings to light the evident disparity in the development of the case law in these areas compared with the development within employment cases. The thesis sets out the &adual but definite
maturing of the protection noticeable in general privacy and criminal cases, particularly in v W [2003] EWCA Crim 1632 p. 98
2 Which themselves are modified by the Telecommunication (Lawful Business Practice) (Interception of Communications) Regulations, 2000 L1 relation to wrongdoing and rehabilitation, arguing that this has yet to filter into the employment cases.
This leads to proposals for reform to remove the evident confusion for employers, employees, legal advisors, those providing oversight and commentators. The proposals encourage the judiciary to embrace the challenges and possibilities provided by the Human Rights Act 1998 to provide appropriate protections for privacy rights within employment. The thesis provides a platform for further research within this area and makes recommendations as to how the findings could be developed by both empirical research or by further comparative studies.
The unusual approach to the research, the original nature of the findings and proposals for reform provide a valuable contribution to knowledge of the domestic legal framework, both statutory and common law suggesting both how it may be more effectively applied and how it could profitably be developed and clarified for both employers and employees. The thesis has thereby moved the debate to a different theoretical place from the established view of the ability of domestic law to effectively protect privacy rights within employment

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