By Ann Bevitt

The monitoring of employees is standard procedure in many workplaces. Although the restrictions on employee monitoring in the workplace may vary from country to country, most privacy and employment legislation recognises the advantages to employers of monitoring employees in the workplace, and accepts that such monitoring may be essential to the effective and efficient running of some businesses. Even so, employers are often obliged, either formally or informally, to take into account the adverse impact of such monitoring on employees before, and on a continuing basis, during such monitoring.

The regulation of employees’ off-duty conduct may be justifiable on the same basis as the monitoring of employees’ workplace activities, in particular, to ensure the proper performance of work duties. However, employers may be subject to more policy-driven restrictions when monitoring off-duty conduct, in addition to the restrictions applicable to monitoring in the workplace. For example, legislation may prohibit the regulation of off-duty conduct which may benefit employees or society in general, such as trade union activities, or conduct which is viewed as of a purely personal nature, such as religious activities or tobacco and alcohol use. Even where such regulation is not prohibited, the same basic approach when monitoring workplace activities of balancing legitimate business needs against respect for employees’ private activities may be seen.

This review will focus on the degrees to which the regulation of employees’ off-duty activities, and in particular trade union and political activities, is permitted in the UK, France, Hong Kong, and Japan. These countries have been chosen as illustrative examples of both the similarities and differences in the approaches taken when regulating employees’ off-duty conduct in Europe and the Asia-Pacific region.  

1. European overview

A. Legislative framework

Article 8 of the European Convention on Human Rights (the Convention) introduces a general, but qualified, right to respect for private and family life and for correspondence. Similarly, Article 10 of the Convention gives a qualified right to freedom of expression and Article 11 a qualified right to freedom of assembly and association. None of these rights are absolute and there are fairly broad exceptions which may allow an employer who wishes to regulate employees’ off-duty private life, speech, or association to do so. However, where such regulation involves the manual recording or any automated processing of personal information, it must be carried out in accordance with the Data Protection Directive  (the Directive), the purpose of which is to protect the fundamental rights and freedoms of natural persons and, in particular, their right to privacy with respect to personal data. Under the Directive,

processing of personal data may only be carried out in certain circumstances, one where the employee has unambiguously granted his or her consent. However, the extent to which consent can be used in an employment context may be limited. Finally, European discrimination legislation may protect employees from discrimination in the workplace based on their off-duty activities if such activities relate to a particular characteristic of the employee which is a “protected category” for discrimination purposes, such as race, sex, disability, sexual orientation, religion or belief, and age.

B. National differences

UK
UK employment law has generally accepted that employers can restrict their employees’ off-duty activities to a considerable extent. Implied into every contract of employment is a term that the employee will serve his or her employer with good faith and fidelity, which can be translated into a duty not to bring the employer into disrepute. In addition, many public-sector employees, such as the police, teachers, and local government employees may be subject to an express contractual requirement that they not behave in a way that is likely to bring discredit upon their employer. What may or may not lower an employer’s repute or bring discredit is often not clear cut and may be difficult to determine. It may also be dependent on the facts of the particular case. For example, for some employers, certain types of political activity may not be tolerated: HM Prison Service operates a policy of prohibiting employees from being members of racist groups and the General Synod of the Church of England voted recently to ban clergy from being members of the extreme right wing British National Party (BNP). BNP members are also banned from the police. For other employers, certain types of sexual activity may be restricted: the Probation Service was held to have fairly dismissed a probation officer responsible for dealing with sex offenders and their victims who, in his spare time, ran an Internet company that sold bondage, domination, and sado-masochism merchandise, on the grounds that his extra-curricular activities were inconsistent with the duties of a probation officer dealing with victims of sex crimes and would bring the Probation Service into disrepute. In these types of cases employees often cite their rights under Articles 8 and 10 of the Convention, as implemented in the UK by the Human Rights Act 1998. So how do the courts balance these competing interests? In the Probation Service case referred to above, the court held that there was no breach of the employee’s rights as Article 8 did not apply due to the fact the employee’s activities had been publicized on a Web site run by the Internet company of which he was a director and, although Article 10 applied, there was no violation of this right when balanced against the competing interests of the Probation Service.

Under the Trade Union and Labour Relations (Consolidation) Act of 1992 (TULRA), union members are protected against dismissal, redundancy selection, or being subjected to any detriment on account of their union membership or union activities at an appropriate time. An “appropriate time” includes times outside the employee’s working hours. The Employment Act 1990 also makes it unlawful for an employer to refuse to engage a person on the grounds of his union membership, non-membership, or union activities.

Employees have also sought to challenge the regulation of their off-duty conduct under the UK’s discrimination legislation. For example, an applicant was permitted to bring a race discrimination claim against HM Prison Service when he was refused employment on the grounds of his BNP membership on the basis that the Prison Service treated white racist organisations less favourably than non-white racist organisations.

France
In principle, in accordance with the right to respect for private life, employees may do what they wish in their non-working hours. In addition, pursuant to Article 10 of the French Declaration of Human and Civic Rights, an employee must not suffer for his opinions, including his religious opinions, provided that his advocacy of them does not endanger public order. An employee’s political freedom at work is guaranteed by two provisions of the French Labor Code. First, Articles L.1132-1 et seq. forbid discrimination based on political opinions at all stages of professional life, from the time of hiring up to termination of the employment contract. Secondly, Article L.1121-1 prohibits restrictions imposed on the rights of persons and individual and collective freedoms inasmuch as they are not justified by the nature of the task to be accomplished or proportionate to the aim pursued. However, an employee’s political beliefs must not impact his professional life. Accordingly, an employer can dismiss an employee whose behaviour has created substantial disruption, in light of the nature of the employee’s duties and the objectives of the company.

Freedom to join a trade union is a fundamental right guaranteed by the French Constitution. The exercise of freedom of trade union membership is protected by discrimination legislation:  employers are prevented from taking union membership into consideration when hiring employees, during their employment, or at termination. Outside work, freedom to undertake trade union activities is also protected under the right to respect for private life and of freedom of thought and opinion.

2. Asia-Pacific region

A. Hong Kong

Under Chapter 11 of the Employment Ordinance, every employee has the right to be a member or an officer of a trade union and take part in the activities of the trade union at any appropriate time (outside working hours or during working hours by arrangement and with the consent of the employer). If the monitoring of an employee’s union activities has the practical effect of deterring his participation in such activities, such monitoring could be in breach of this legislation.

B. Japan

 The Supreme Court has indicated that restrictions on political activities outside the workplace must be rational and permissible, as determined on a case-by-case basis. The Supreme Court held that, “by being employed, employees have the duty to maintain and secure the corporate order. Ordinarily, maintaining and securing the corporate order can be achieved by regulating the acts of the workers within the workplace, or their actions that relate to their jobs. However, there may be cases when such restrictions are not sufficient. Clearly, if there is a direct relationship with the corporate order, even acts of workers outside the workplace with no relationship to their work may be the subject of restriction. A corporation is a member of society, and damage to its social reputation may impede the smooth operation of business. If, objectively speaking, the worker’s actions outside the workplace may damage the social reputation of the business, there may be cases when restriction of such activity is permissible.”

However, in another decision the Supreme Court decided that a disciplinary discharge of an employee for acts outside the workplace was ineffective. This decision involved an employee who was arrested and indicted for his political activities outside the workplace and was discharged by his employer due to severe damage to its social reputation. In this case the Supreme Court stated that “in order to determine that the dishonorable actions of an employee have damaged the reputation of the business, it is not necessarily required that there be specific incidents of interruption of business or disadvantages suffered in business transactions. However, the act must be objectively determined to be considerably detrimental to the social reputation of the company, looking comprehensively at factors such as the nature of the act, circumstances of the act, the type, manner, and scale of the company’s business, the status of the company in the business world, the company’s policies, the position and duties of the employee at the company, and other relevant matters.”

Further, the Protection of Personal Information of Workers (Action Guide) issued by the Japanese Ministry of Health, Labour and Welfare in 2000 prohibits the collection of personal information about workers regarding their “philosophy, faith, or religious beliefs.” Accordingly, employers should not seek to regulate the political activities of their employees outside the workplace, as doing so could result in the breach of this prohibition.

3. Off-duty = off limits?

As can be seen from the above brief review, although employees may have some legislative protections in respect of the regulation of their off-duty conduct, there are circumstances where employers can properly seek to regulate what employees do, or not do in their non-working time, even if there are generally accepted benefits to society as a whole in the employees undertaking such activities, as is the case with trade union activities. However, given the fact-sensitive nature of court decisions in this arena, employers should tread very carefully when seeking to regulate such activities to avoid any liability arising out of such regulation.

Ann Bevitt is a UK qualified partner in the London office of Morrison & Foerster and head of the office’s EU Privacy and Employment & Labour Groups. Ms. Bevitt has extensive expertise advising clients on international data protection and privacy issues. She is a contributing author to the book Global Employee Privacy and Data Security Law, published by BNA Books. Ms. Bevitt covers all aspects of employment law and privacy-related matters.