WHAT TO KEEP AN EYE OUT FOR…
Barbulescu V Romania – Employers Monitoring Employees Personal Emails during working time
The European Court of Human Rights (ECHR) delivered its most recent determination on the issue of employee privacy and email monitoring in the case of Barbulescu v Romania (Case 61496/08). The Grand Chamber of the ECHR held that there had been a violation of Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention on Human Rights (the Convention) where an Employer monitored and accessed personal emails sent by an Employee during business hours from his Yahoo Messenger account, using company property without notifying the Employee in advance that monitoring would take place.
A 2016 ruling from a lower division of the ECHR held that there had been no violation of article 8 of the Convention. The Grand Chamber of the ECHR overturned this decision holding that there had been a violation of article 8. In reaching its decision the court noted a number of key issues the domestic courts had failed to determine:
The court raised the question of whether the Claimant could have a reasonable expectation of privacy in light of his employer's restrictive regulations on internet use (of which he had been informed) but ultimately felt that an employer's instructions could not reduce private social life in the workplace to zero.
Taking all of the above into consideration the court felt that an appropriate balance had not been struck between the competing interests of the Employer and the Employee and that the Employee's right to respect for private life had not been adequately protected.
Bookkeeper ‘Retired’ by Firm at 66 Awarded €12,000
A bookkeeper who was “retired” by her Employer on reaching the age of 66 has been awarded €12,000 in an age discrimination case she took against a family-run retail business.
The award was one of a number of similar rulings made by the Workplace Relations Commission (WRC) in cases where the Employer had no employment contract in place to confirm that an Employee would retire on reaching a certain age.
In her submission, the woman made it clear she had no contractual or other agreement that she would retire and that she wished to continue working.
She described a number of engagements with her Employer between August 2015 and August of last year (2016) in the course of which she came to understand that it was expected she would retire initially on reaching her 65th birthday, and then again on turning 66.
The woman rejected the offer of re-engagement on a two-year contract as she said such a contract given to a co-worker previously had proven unreliable.
In its submission, the Employer said it believed it had an oral contract with the woman and that an implied term of the woman’s contract of employment was that she would retire on reaching 65.
The business also said that a pension was created for the complainant in 2004 which clearly foresaw her retirement at the age of 65. It stated that it genuinely believed such a retirement age was necessary for the management of its business but it was willing to offer a fixed term extension.
In his ruling, WRC adjudication officer Pat Brady found that the termination of the woman’s employment was discriminatory and there had been a failure to provide any justification for it.
Mr Brady said the only justification offered was the Employer’s “somewhat vague, anachronistic and unlawful view” that it had the right to terminate employment at 65 because it was traditional to do so.
He said that the Employer had held the Employee in high regard and there was no element of any reflection on her conduct or competence.
“However, this provides no defence whatsoever and is essentially a plea of ‘ignorance of the law,’” he said. “The attitude of bemused indignation that a person might have to be retained in their employment up to an indefinite age gave a good indication of how far such, in fairness widely held views, are off the mark in respect to the law relating to retirement age.”
Change of Minister to whom Collective Redundancy Notifications should be made
As and from 1 September 2017 Collective Redundancy notifications should be made to the Minister for Employment Affairs and Social Protection, Áras Mhic Dhiarmada, Store Street, Dublin 1.
Statutory Instrument No 361 of 2017 provides for the transfer of a number of administrative and legislative functions relating to Labour Affairs and employment law, previously vested in the Minister for Jobs Enterprise and Innovation, to the Minister for Social Protection. This Order comes into operation on 1 September 2017.
The legislative functions which will transfer to the Minister for Social Protection include the Protection of Employment Acts 1977 to 2014. Accordingly, employers should note that where an employer proposes collective redundancies, the notification required under Section 12 of the Protection of Employment Act 1977 and specified in Statutory Instrument No 140 of 1977 should be addressed to the Minister for Employment Affairs and Social Protection with effect from 1 September 2017.
The European Court of Human Rights (ECHR) delivered its most recent determination on the issue of employee privacy and email monitoring in the case of Barbulescu v Romania (Case 61496/08). The Grand Chamber of the ECHR held that there had been a violation of Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention on Human Rights (the Convention) where an Employer monitored and accessed personal emails sent by an Employee during business hours from his Yahoo Messenger account, using company property without notifying the Employee in advance that monitoring would take place.
A 2016 ruling from a lower division of the ECHR held that there had been no violation of article 8 of the Convention. The Grand Chamber of the ECHR overturned this decision holding that there had been a violation of article 8. In reaching its decision the court noted a number of key issues the domestic courts had failed to determine:
- Whether the Claimant had received prior notice;
- Whether there were legitimate reasons to justify the monitoring;
- If there were such reasons, whether the employer could have used measures entailing less intrusion into the employee's personal life and correspondence;
- Whether the emails might have been accessed without his knowledge.
The court raised the question of whether the Claimant could have a reasonable expectation of privacy in light of his employer's restrictive regulations on internet use (of which he had been informed) but ultimately felt that an employer's instructions could not reduce private social life in the workplace to zero.
Taking all of the above into consideration the court felt that an appropriate balance had not been struck between the competing interests of the Employer and the Employee and that the Employee's right to respect for private life had not been adequately protected.
Bookkeeper ‘Retired’ by Firm at 66 Awarded €12,000
A bookkeeper who was “retired” by her Employer on reaching the age of 66 has been awarded €12,000 in an age discrimination case she took against a family-run retail business.
The award was one of a number of similar rulings made by the Workplace Relations Commission (WRC) in cases where the Employer had no employment contract in place to confirm that an Employee would retire on reaching a certain age.
In her submission, the woman made it clear she had no contractual or other agreement that she would retire and that she wished to continue working.
She described a number of engagements with her Employer between August 2015 and August of last year (2016) in the course of which she came to understand that it was expected she would retire initially on reaching her 65th birthday, and then again on turning 66.
The woman rejected the offer of re-engagement on a two-year contract as she said such a contract given to a co-worker previously had proven unreliable.
In its submission, the Employer said it believed it had an oral contract with the woman and that an implied term of the woman’s contract of employment was that she would retire on reaching 65.
The business also said that a pension was created for the complainant in 2004 which clearly foresaw her retirement at the age of 65. It stated that it genuinely believed such a retirement age was necessary for the management of its business but it was willing to offer a fixed term extension.
In his ruling, WRC adjudication officer Pat Brady found that the termination of the woman’s employment was discriminatory and there had been a failure to provide any justification for it.
Mr Brady said the only justification offered was the Employer’s “somewhat vague, anachronistic and unlawful view” that it had the right to terminate employment at 65 because it was traditional to do so.
He said that the Employer had held the Employee in high regard and there was no element of any reflection on her conduct or competence.
“However, this provides no defence whatsoever and is essentially a plea of ‘ignorance of the law,’” he said. “The attitude of bemused indignation that a person might have to be retained in their employment up to an indefinite age gave a good indication of how far such, in fairness widely held views, are off the mark in respect to the law relating to retirement age.”
Change of Minister to whom Collective Redundancy Notifications should be made
As and from 1 September 2017 Collective Redundancy notifications should be made to the Minister for Employment Affairs and Social Protection, Áras Mhic Dhiarmada, Store Street, Dublin 1.
Statutory Instrument No 361 of 2017 provides for the transfer of a number of administrative and legislative functions relating to Labour Affairs and employment law, previously vested in the Minister for Jobs Enterprise and Innovation, to the Minister for Social Protection. This Order comes into operation on 1 September 2017.
The legislative functions which will transfer to the Minister for Social Protection include the Protection of Employment Acts 1977 to 2014. Accordingly, employers should note that where an employer proposes collective redundancies, the notification required under Section 12 of the Protection of Employment Act 1977 and specified in Statutory Instrument No 140 of 1977 should be addressed to the Minister for Employment Affairs and Social Protection with effect from 1 September 2017.
