Occupational Health Law. Diana Kloss
evaluate its public policy decisions. Not all countries will interpret the Convention in exactly the same way. An example would be the law of obscenity, which restrains the freedom of expression of publishers. Some countries’ laws will be more liberal than others in what they permit.
Convention rights important for OH professionals are Article 5, the right to liberty and security of person, Article 6, the right to a fair trial, Article 8, the right to respect for private and family life, Article 9, freedom of thought, conscience and religion, and Article 10, freedom of expression. There is no freestanding right to complain of discrimination. Article 14 states that the enjoyment of the rights and freedoms set forth in the Convention must be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. For example, my right to freedom of expression should not depend on whether I am black or white, male or female, a member of the Liberal Democrats or the British National Party. My right to a fair trial includes the right to an interpreter if I do not speak English.
Article 8 of the Convention, the right to respect for private and family life, home and correspondence, has given rise to a number of cases both in the Strasbourg and the UK courts. English law up to now, though recognising a duty of confidence, has not developed a general right of privacy. What is the difference? In Kaye v. Robertson (1991) Gorden Kaye, a television actor, was badly injured when a hoarding fell on his car in a storm. A photographer without permission took photographs of him lying in his hospital bed after an operation and sold them to a newspaper. The court held that there was no right to privacy. However, in 2003 Naomi Campbell, a model, was photographed in the street leaving a meeting of Narcotics Anonymous and the picture was published in the Daily Mirror. The House of Lords held that this was a breach of the duty of confidence by the other member of the group who had notified the press that Naomi was attending the meetings, and that the photographs should not have been published. They discussed the conflict between Article 8 and Article 10, the right of freedom of speech, and held that in this case there was no public interest overriding the claimant’s right to have her private life remain private (Campbell v. MGN). Attempts have been made, with limited success, to persuade UK courts that Article 8 could be used to create a general right of privacy. Courts ask whether the claimant had a reasonable expectation of privacy and whether there is a public interest in private information being revealed. In R (on the application of W, X, Y and Z) v. Secretary of State for Health (2015), individuals not ordinarily resident in the UK were billed for NHS treatment which is free to UK residents. NHS Trusts are required by statutory regulations to provide the Secretary of State with data about such individuals who owe debts of at least £1000. The information demanded covers their identity and the name of the NHS body to which the debt is owed but not any medical details. It is passed to the Home Office which administers the immigration rules. Patients were made aware of this system before they received the NHS treatment. It was challenged as an invasion of the patients’ right to privacy. The Court of Appeal held that the patients did not have a reasonable expectation that the information would be held in confidence and, in any event, the public interest in disclosure outweighed the interest in privacy. The sharing of the information was in accordance with the law and Article 8 of the Human Rights Convention was not infringed. Nevertheless, Article 8 has strengthened the right to have confidential information respected, which is very relevant to occupational health (Chapter 3).
The courts have held that matters in the public domain do not fall within the protection of Article 8. In X v. Y (2004) the applicant was employed as a development officer for a charity which promoted personal development among young people. His post involved working with young offenders. He was arrested for engaging in consensual sexual activity with another man in a public toilet and was cautioned for an offence under the Sexual Offences Act. He did not reveal this to his employers, but when they discovered it through police checks they dismissed him for gross misconduct. They emphasised that it was not his homosexuality that was in issue, but his deliberate failure to disclose a criminal offence that was relevant to his job. The charity was not a public authority, so no action could be brought for a breach of the Human Rights Act. Nevertheless, the Court of Appeal held that in determining whether the dismissal was fair the tribunal should take into account the Convention. The applicant argued that the dismissal was a breach of Article 8, since at the time of the offence he was off duty and the incident did not involve any of his clients. The court held, however, that as the crime was committed in a public place it could not be regarded as private. In any event, the applicant was guilty of a criminal offence, which is not a private matter. ‘The applicant wished to keep the matter private. That does not make it part of his private life or deprive it of its public aspect.’ It was held that the dismissal was fair.
A similar case, Pay v. United Kingdom (2009), was taken to the Strasbourg court. A probation officer working predominantly with sex offenders was discovered by his employers through an anonymous tip‐off to be involved in the merchandising of sado‐masochistic products, which he advertised on the Internet. Anonymised photographs of him engaged in sado‐masochistic activities were displayed on websites. Nothing that he had done was in breach of the criminal law. He was dismissed for engaging in activities incompatible with his role and responsibilities as a probation officer and brought proceedings for unfair dismissal, which were unsuccessful in the English courts. On appeal, the Court of Human Rights held that the interference with Pay’s right to privacy pursued a legitimate aim, namely the protection of the employer’s reputation, and was proportionate. He owed to his employer a duty of loyalty, reserve and discretion. His sexual proclivities were his own affair, but he had made them public. However, the Strasbourg court decided that the right to privacy was not necessarily confined to private premises, and could extend to, for example, meetings open to the public but likely to be attended only by a small group of like‐minded persons, for example a meeting of Alcoholics Anonymous. They also held that the criminal nature of an activity did not automatically remove it from the protection of Article 8, where it was unconnected with employment (an example might be the recreational use of illegal drugs in the employee’s off‐duty time).
Alison Halford was Assistant Chief Constable of Merseyside Police. She failed to achieve further promotion in Merseyside and elsewhere, because, she said, of her gender. Eventually she made a complaint to a tribunal, backed by the Equal Opportunities Commission. She claimed that her telephone calls from her office to her solicitor were intercepted. It was not unlawful in UK domestic law at the time for the employer to listen to his employee’s calls on the office telephone. Ms Halford therefore complained to the Strasbourg Court under Article 8 and her complaint was upheld (Halford v. UK (1997)). She had a reasonable expectation that her calls would not be overheard, since the Chief Constable had assured her that she could make private calls on that phone. Legislation is now in place to permit employers to monitor telecommunications at work, but only when employees have been warned that monitoring is in place. The Regulation of Investigatory Powers Act 2000 permits interception of a communication over a telecommunication system if this is a legitimate business practice. The Telecommunications (Lawful Business Practice) Regulations 2000 authorise businesses to monitor or record communications for good business reasons, e.g. for the purpose of quality control, to prevent or detect crime, to investigate or detect unauthorised use of the telephone, emails, or the Internet. The employer must make all reasonable efforts to inform every person who may use the system that interception may take place. In the case of occupational health communications, it is important that agreement is reached with the employer that these will not be monitored. The Information Commissioner in Part 4 of the Data Protection Code of Practice emphasised this point (Chapter 3).
Evidence given in legal proceedings may be challenged as obtained through an invasion of privacy under the Human Rights Act. Jean Jones was employed by the University of Warwick. She dropped a full cash box with a broken lid on to her right wrist, causing a small cut. She said that she had developed a focal dystonia, and claimed damages in excess of £135,000. The defendant’s insurers were suspicious of this claim and hired an enquiry agent who obtained access to the claimant’s home by posing as a market researcher.