September Round Up: Strasbourg on employees’ emails, Brexit, and news on sexual offences and abortion rights

24 September 2017 by Sarah Ewart

In the news this month:

The Brexit Bill

The Bill for the withdrawal from the European Union has been dominating the news over the past few weeks.  Mark Elliott comments that it is ‘difficult to overstate the importance’ of the bill from a constitutional standpoint, and the House of Lords Constitution Committee has said in an interim report that its political, legal and constitutional significance are ‘unparalleled’. Concern has been voiced in various quarters over the use of ‘Henry VIII’ powers (so named because of the monarch’s disdain for parliamentary restraint) which will allow the executive to bypass parliament to ‘tweak’ legislation, and a concomitant lack of sufficiently robust sunset clauses or checks and balances to the handover of such powers. For more detail, I highly recommend listening to David Hart QC’s conversation with Rosalind English on our new podcast series Law Pod, in which he details the potential consequences of the bill in general and in terms of environmental law in particular; you can read his comments here or have a listen here.

In the first week in September, a leaked draft Home Office document gave a taste of what the government has in mind for the post-Brexit immigration system. The proposals indicate a tightening on the definition of family members of citizens and suggests that CJEU case law will no longer apply, for the first time citing specific cases (Singh, Metock, and Zambrano). The document is presumably cognisant of the recent Opinion of AG Bot in the case of Toufik Lounes, which, if followed, will allow a non-EU national to benefit from the right of residence of their spouse (an EU citizen) even when they have also become a naturalised British citizen. See Colin Yeo in the New Statesman for more problems with this, and details in the Guardian here.

Sexual Offences

A series of reports have concluded that no charges should be brought against senior council figures on Rotherham Metropolitan Borough Council, despite ‘serious organisational failings’ that left countless children vulnerable to sexual abuse. Meanwhile, several men have been sentenced in Newcastle on Tyne for the grooming and sexual exploitation of young girls, following a highly criticised police investigation that used a convicted rapist as a paid informant. In early September the Guardian reported  a sharp rise in the number of reported cases of webcam blackmail, also known as sextortion.

Recently the CPS made a public commitment to male victims of crimes including harassment, stalking, and domestic and sexual abuse, as part of the CPS Revised VAWG strategy for 2017-2020. The statement lays out plans to address these specific needs, including by improving reporting, and working with campaigning groups to change gender stereotypes, and groups that work with men and boys. DPP Alison Saunders says that this public statement formalises the CPS commitment to male victims and ‘recognises that stereotypes of masculinity and femininity can, and do, feed sexist and homophobic assumptions. These can deter victims from reporting abuse.’

Immigration Detention

A BBC Panorama undercover documentary has exposed a culture of abuse and systemic violence in Brook House, an immigration removal centre. Several members of staff have since been arrested and G4S has announced an investigation into the centre, but this is one in a series of many exposés uncovering institutional failings in the immigration detention system: Yarl’s Wood in particular has consistently come under fire for inhumane treatment of inmates.  Nathan Ward, previously a senior manager at Brook House, suggests that though the scale of the violence is shocking, it is hardly surprising; he adds his voice to the clamour of professionals calling for an end to indefinite immigration detention, by introducing a cap, and a requirement for the judiciary to review any detentions of over a certain period.  Indefinite incarceration has been the frequent subject of legal challenge: head over to Free Movement for a full rundown of the legal and factual context of immigration detention, as well as mistreatment and use of force, and the potential for unlawful detention claims.

Abortion Rights

In Northern Ireland, the Public Prosecution Service has made it clear that medical professionals will not risk prosecution for referring women to clinics in England and Wales for abortions, the Guardian reports. This clarification has been welcomed by campaigners as a positive step in alleviating a climate of fear and uncertainty among medical professionals, which has created a significant barrier to women in need of an abortion. This comes after the government’s unexpected U-turn on its policy in June, when it announced its intention to make free termination services available for women travelling from Northern Ireland to mainland Britain for abortions on the NHS, after the Supreme Court narrowly refused the issue in R (A and B) v Department of Health [2017] UKSC 41 (Lady Hale and Lord Kerr dissenting). UK Human Rights Blog Editor Rosalind English wrote extensively about that case here , and you can listen to her discussion about the Northern Ireland abortion issue on Law Pod UK here.

Elsewhere in the news: a trainee solicitor has been sentenced to 18 months imprisonment and suspended for two years for providing unlawful immigration advice; the Children’s Society has published a report on the thousands of migrant children at risk following the LASPO 2012 cuts; and the UN has condemned the UK government’s treatment of disabled people as a ‘human catastrophe’ (see our previous comment here).

In the courts:

Bărbulescu v. Romania, application no. 61496/08

In the first week of September the Grand Chamber of the ECtHR  overturned a previous ruling regarding the dismissal of an employee after monitoring his email communications at work. The ruling will force employers to give more explicit notice to staff if they want to monitor email use, even using office equipment or a company account.

Facts

Mr Barbulescu was asked by his employer, a private company, to create a professional email account, and later one employee was dismissed for using her account for private purposes. When Barbulescu denied having similarly used his own account for private purposes, he was informed that his account had been monitored, presented with a dossier of files evidencing his messages to his fiancée and brother, and ultimately sacked.

Before the ECtHR in January 2016, he complained that there had been an unreasonable breach of his Article 8 right to privacy, but the court found that although that right had been engaged, there had been no unreasonable violation, essentially along the same reasoning as the domestic courts: that he had been duly warned, and that the employer’s monitoring of his communications had been reasonable in the context of disciplinary proceedings. The Grand Chamber, however, has overturned that ruling.

Grand Chamber Judgment

The Court confirmed that email communications within the workplace are covered by the notion of ‘correspondence’ in the ECtHR’s case law on private life (Copland v UK), even if sent by an employer’s computer [at 74]. Notwithstanding the restrictive warnings the employer had issued, the Court noted that an employer cannot reduce private social life in the workplace ‘to zero’: the right to respect for privacy and social life continues to exist even if it has been restricted as much as is necessary [at 80].

Although the complainant was employed by a private company, and therefore this action did not constitute interference by the State, the measure taken by the employer was endorsed by the national courts, and therefore this fell under the remit of the State’s positive obligations under Article 8 [at 111]. Although in principle employers’ regulation of employees’ emails falls within the State’s margin of appreciation under Article 8, the Court notes that the discretion in this area ‘cannot be unlimited’ [at 120], saying that ‘proportionality and procedural guarantees against arbitrariness are essential’ [121]. It lists a number of factors that it deems relevant, which include, inter alia, the nature and clarity of the warning that employers have issued, to the effect that communications will be monitored; the extent of the monitoring and the degree of intrusion into the employee’s privacy (requiring a distinction between scrutiny of existence of emails and their content); whether legitimate reasons have been provided, and whether less intrusive methods were available; the consequences of the monitoring for the employee, and whether safeguards for that employee were in place [at 121].

In Mr Barbulescu’s case, the national courts had failed to take several of these factor into account, in particular failing to determine whether the employer had issued prior notice of the monitoring: the circular regarding the recent dismissal of one employee would not suffice as clear prior warning. The domestic courts had not had regard to the lack of information regarding the nature and extent of the monitoring, the degree of intrusion, the specific justifications for it or the possibility of less intrusive measures. As a result, they had failed to strike a fair balance between Mr Barbulescu’s right to private life and his employer’s competing interests. Mr Barbulescu was not awarded compensation, as the ruling itself was found to be just satisfaction.

By Sarah Jane Ewart