International Employment – latest Digital
Employment issues
Melanie Lane and Karine Audouze
Introduction
• Digital employment seminar – March 2013:
• Latest social media cases and legislative developments
• Home working and working time
• “Bring your own device”
• Jurisdictional issues arising from cross border working
• Agenda:
• Brief update: UK, Germany and Spain
• Facebook and BYOD in France – recent case law developments
• European data protection reform
Digital Employment – social media
• No significant recent social media cases in the UK
• General themes therefore remain:
• Employers can generally rely on postings which reveal misconduct
• Having clear social media policy assists employers
• But usual unfair dismissal principles apply
• ETs not sympathetic to privacy/freedom of expression arguments if risk of
damage to employer’s reputation
Digital Employment – social media
Recent Facebook case law in France
• Until recently, Facebook viewed as public arena whatever the privacy settings
• So, as in the UK, French employers could rely on postings which reveal
misconduct
• Freedom of speech as a union member was no defence
• New approach by the Civil Chamber of the French Court in April 2013: a FB
profile is not public hence actions of an employee are in his/her private sphere
Digital Employment – social media
• October 2013, Spanish Constitutional Court decision:
• Permissible to monitor company provided email and phones, even if no prior
notification
• Employer justified in firing employee whose breach of confidentiality revealed
by such monitoring
• Contrary to previous Supreme Court doctrine requiring prior notification of
monitoring
Digital Employment - BYOD
• Increasingly popular in UK, Germany and Spain
• Cost savings v security and data protection issues
• UK: new ICO guidance; clear policy vital
• Germany: data privacy issues; monitoring personal devices almost impossible;
need to involve works councils
• Spain: popular, but law and practice less developed
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Digital Employment - BYOD
• BYOD policies are not developed in France, unlike UK
• February 2013: French Supreme Court decision allowing employers to monitor
personal USB sticks connected to office device
• Not permissible to monitor employees’ personal dictaphones
• No case law on monitoring of private phones
• Strong data protection laws in France may impair control by employer of personal
devices
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www.olswang.com
EU data protection reform
• January 2012, EC published proposals for reform of EU data protection law
• Draft Regulation to replace existing Data Protection Directive
• Aim to harmonise data protection processes and enforcement across EU and
address privacy online
• To be directly binding
• European Parliamentary Committee confirmed its stance last month
• EC/EP/Council will now negotiate
• Agreement at EU level by May 2014, with new Regulation coming into force from
May 2016?
New EU rules: top changes
• Current principles amplified + new principles e.g. RTBF/erasure
• Anti-trust style fines – up to 2% of enterprise’s global turnover (or maybe 5%!)
• Data breach notification requirements
• More prescriptive tick box / documented / auditable compliance
• DPO requirement
• Direct obligations and liabilities for data processors
• Data controllers stronger obligations for processor selection
• National rules to govern processing in employment context