"Orwell warned us in 1948 in writing 1984 that without a presumption of privacy and freedom of thought, the coming technology of surveillance had the capacity to extinguish most of what it means to be human". As most people think, Orwell's vision of what was to come was simply amazing and uncanny.
So wrote Iain MacWhirter in The Herald of 10th October 2013 in a fascinating article about the dangers facing us in current times where Orwell's fears have not only been realised but exceeded. "If you haven't done anything wrong, you have nothing to fear', said Andrew Parker of MI5 or words to that effect. Oh yes you have.
So what about the workplace where Her Majesty's Judges are the guardian of the standards and the controllers of what goes and what does not in the context of the Employment Tribunal, the Employment Appeal Tribunal (EAT) and the Courts above?
CCTV at work.
That is now regarded as acceptable as long as the employer puts up a warning notice. The employee has no right of objection, just a right to be informed. What is thereby garnered by the surveillance is pretty much open season for potential disciplinary action. You might put it thus:- "If you haven't done anything wrong, you have nothing to fear'.
What about the circumstance of no warning at all but clandestine CCTV? That's ok too as long as a crime is apprehended when the CCTV is installed. So found Mr Ali when he was caught having sexual intercourse with a colleague in the back shop of Threshers by the clandestine CCTV put there to detect apprehended theft of alcohol stock. Fair enough said the Judges (1). No privacy protection was considered to be necessary. Most employment lawyers thought it was funny at Mr Ali's expense.
Work Email monitoring.
This is now so standard a practice that it is entirely commonplace. No-one bats an eyelid about it. "If you haven't done anything wrong, you have nothing to fear', goes the thinking.
While your grandparents would be horrified about your employer nosing around in your private diary or steaming open an envelope addressed to you personally at work to read the contents of the letter, nowadays email is open season for monitoring by the employer. It's his email system, and he can look at what he likes. Yes even if it's an email from your boyfriend or your mistress, or a note from your doctor about your cancer scare. More fool you for having them sent to the workplace goes the argument. A clause in the contract or the handbook is a good idea for the benefit of the employer, but it is frankly scarcely necessary. Who can say when a Judge last ruled against such the admission of, or the reliance upon, such evidence?
I recently advised a young female solicitor, qua employee, who was grilled by her lawyer employers about what their surveillance had uncovered about her email exchange to the point that they detained her in a room, accessed her Hotmail account on their office pc and deleted everything passing between their system and hers, even if it was private correspondence. They would say it was entirely fair enough as their astute surveillance had picked up what they thought was a business risk. They would have guffawed if you had suggested that they acting akin to what Granny would have seen as a diary snooper.
Many of us know of serial training requirements using modern telephone systems by reason of those messages that say 'this call may be/is being recorded for training purposes'. Have you ever heard of anyone who was trained as a result of information gleaned from this listening?
Other employers rely on contractual provisions in the employment contracts, alerting employees to the possibility of their employers listening in to calls.
In either case anything then goes or is likely to go, in terms of action as a result of the listening. You were warned. Your right to privacy about the call is non existent in the face of that warning.
What else could the employer try? How about bugging your workplace or your private office?
Most right thinking people still find this practice abhorrent. The newspapers report the practice, if it becomes news, avidly and critically. The man in the street finds it to be incredulous. These reactions are based on the clear breach of privacy. The employer's desire to listen to private conversations, to hear one side of any telephone calls, perhaps even to set a trap by sending in a questioner to ask some provocative questions and see what is found by way of reply, is regarded by the man in the street as reprehensible.
You can bet that the employer will seek to justify this horrible action by saying he apprehended a crime, a breach of confidentiality or a breach of contract. Something or other to that effect. The Ministry of Truth. "If you haven't done anything wrong, you have nothing to fear', he will say. What he won't be doing is pleading his own paranoia.
What of our Judges? Are they worried about privacy breach in a bugging event and/or freedom of the individual not to be recorded behind his back?
In two cases at the EAT Vaughan (2) and Dogherty (3) this issue was analysed in circumstances where the employee was the one who did the sneaky recording. In Vaughan the fact of the recording manifested itself late in the judicial process. There was no transcript available to the Tribunal. Without it, the EAT was of the view that the recording should not be allowed. They said that only with a transcript could a sensible view be reached as to the admissibility of the recording. The EAT did describe the practice of secret recordings as 'very distasteful' and 'discreditable' but hinted that with a transcript it might have been admissible. The EAT relied on the thinking in Dogherty.
In Dogherty the situation was that an employee had sneakily recorded the more public part of her disciplinary meeting, but also the private deliberations by the school Governors when the meeting went into that mode and she had been asked to leave the room. This time there was a transcript available to the Tribunal. The judgement in this case was that the recording of the public part of the hearing was fair enough as evidence but not that of the private part. The theme of the decision about admitting part of the transcript was, to an extent, that we have it anyway so let's look at it/listen to it, even though the EAT also used the word 'distasteful' to describe secret recordings. They said 'we can identify no basis of principle upon which this Tribunal might be said to have erred in not excluding the transcripts of the "open hearing" parts of the proceedings'. Forgive the double negative, the dam was breached.
In a current case at the Employment Tribunal in Glasgow, a director of a limited company found his room had been bugged by a device located in a plant pot. The recording had been transcribed into a 90 page transcript which included private conversations with his wife and others.
The parties agreed to shorten that transcript to about 20 pages of the more relevant parts, excluding the most private parts, but still under protest by the employee as to admissibility. The Employment Tribunal had first to deal with that protest before hearing the rest of the case and went into private session to rule on it. It decided, based on Dogherty especially, that the transcript should be allowed in as a document but indicated it would consider any specific privacy issues on actual content if they arose. I am not suggesting for a moment in this article that the Employment Tribunal was wrong in law in that assessment. They relied on Dogherty.
So what would your grandparents think?
It seems to me that they would be astonished and horrified. The mantra:- "If you haven't done anything wrong, you have nothing to fear', has turned their old fashioned values on their head. These were built over centuries in the field of human decency. Not so much is the big guy still required to prove it has acted decently, as the wee guy is required to demonstrate his behaviour is acceptable in the face of the evidence produced against him by modern day technology. The independent judiciary has analysed each case on its individual circumstances and will continue to do so. But siding with Orwell's worries cannot be taken as a given.
What about 2084 in the workplace?
Will there be a workplace in 2084? Whatever it looks like physically, all communications will be routed through an instant filter server in China which will communicate any worrying aspects to the Values Commissariat. These communications will include thoughts sent by transponders fitted intra cranially into every employee.
There will be no Employment Judges as the Thought Commissars will not be needing any judicial interference into the smooth and economic running of business. The people who will then be 100 years old plus will be located in the bunker of the Commissariat, talking in a rambling way of the early 2000s when the information systems began to change for the worse, but not being allowed out to contaminate the young.