Tag archives: Privacy

France: Provocative acts do not necessarily fall within the scope of sexual harassment if the victim’s behaviour is ambiguous

The French employment Code defines sexual harassment as “repeated sexual comments or conduct that either violate the [employee’s] dignity because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation against the employee“.

The French employment Code also assimilates to sexual harassment “any form of serious pressure, even non-repeated, exercised for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party“.

However, on 25 September 2019, the French Supreme Court (Cour … Continue Reading

Admissibilité en preuve d’une vidéo de filature : l’article 2858 C.c.Q fait l’objet d’une récente décision de la Cour d’appel

Dans une décision majoritaire rendue le 3 octobre 2019[1], la Cour d’appel traite de l’admissibilité en preuve d’une vidéo de filature obtenue en dehors du milieu de travail en vertu de l’article 2858 C.c.Q.

La majorité des juges concluent que l’employeur était justifié de procéder à une filature suite aux recommandations de son médecin qui remettait fortement en doute la crédibilité de la salariée.

Faits et décisions des instances inférieures

La salariée occupe un poste de préposée aux bénéficiaires et doit s’absenter pour un problème à l’épaule. À son arrivée au bureau du médecin désigné par l’employeur, ce … Continue Reading

Keeping your finger(print) on the pulse:  Employer’s warned of the risks associated with the collection of biometric data

The everyday use of biometric technology in contemporary society is nothing new.

We live in a world where we regularly use fingerprint recognition for home security, facial recognition to open our phones and voice recognition to ask Siri to spice up a party by playing the latest Taylor Swift tune.  Despite the significant advancements and prevalence of biometric technology in everyday society, the legality of the use of biometric fingerprint technology in the workplace has been given a thumbs down in a recent case.

A recent Fair Work Commission Full Bench decision has shed light on the obligations and risks … Continue Reading

RGPD : nouveau facteur de risque en droit social?

Le règlement général sur la protection des données (« RGPD ») est entré en vigueur le 25 mai 2018. Il modifie la législation antérieure sur le traitement des données personnelles en supprimant notamment le principe de déclaration préalable à la CNIL. Cette déclaration est remplacée par une obligation pour l’entreprise de démontrer la conformité de ses systèmes de traitement des données, notamment par la nomination d’un délégué à la protection des données et l’obligation de notifier les violations de données. Les sanctions liées au non-respect de cette réglementation ont de quoi faire frémir les directions juridiques puisque les amendes que … Continue Reading

The GDPR – What does it mean for Employers?

You cannot fail to have noticed that the GDPR (General Data Protection Regulation ((EU) 2016/679)) came into force today.   The Data Protection Act 2018 received Royal Assent on 23 May and ensures that the standards set out in the (GDPR) have effect in the UK.

The GDPR affects the processing of employment data – but what does this actually mean for employers?

Changes to contracts of employment

Many existing contracts of employment will contain clauses giving consent for employers to process their employees employment data. As a result of the GDPR the conditions for obtaining consent to processing of data … Continue Reading

Information collected via Facebook cannot – always – be used as evidence against an employee

Technology is ever-changing, and while in the past evidence of an employee’s misconduct was based mainly on “physical” witnesses and observations, employers might now be tempted to use data obtained through social media as evidence against their employees.

At the present time the French Supreme Court has not had many occasions to clarify the manner in which evidence obtained by French employers through the Facebook website (and more particularly on the “wall” of an individual) should be treated by the courts.… Continue Reading

Refresh your feed: Updated Guidance on Social Media Background Checks

Social media is ubiquitous.  Over 20 million Canadians have a social medial account. It is a major source of information about our friends and the world around us.  It is also an important vehicle for recruiting and background information.

Employers will often have good reason to formally check an applicant’s social media profile in the hiring process.  Many will also do so informally.  Recognizing these realities, the BC Information and Privacy Commissioner has provided some updated guidance.  The guidance is good advice as well for employers operating in provinces that do not have private sector privacy legislation as various … Continue Reading

Use of social media in France: Employee’s rights and obligations

The impact of the use of social media in the workplace has regularly given rise to controversies and debates as how this subject is to be handled by a company’s management. The current state of employment law is still not entirely settled in this respect. It is however possible to provide some guidance on the most common issues arising from such use with regard to employment law (data protection regulations will not be considered in this article).

Access and control of social media in the workplace

As a general rule, employees are allowed to access the internet for non-professional purposes … Continue Reading

ICO updates its subject access Code of Practice

The Information Commissioner’s Office in the UK (ICO) has updated its Subject Access Code of Practice (the Code) which deals with requests from individuals for personal information. The amendments are mainly to reflect the Court of Appeal’s decisions in the recent cases of Dawson-Damer and others v Taylor Wessing LLP [2017] EWCA Civ 74 and Ittihadieh v 5-11 Cheyne Gardens RTM Company Ltd and Deer v University of Oxford [2017] EWCA Civ 121.

In the UK under the Data Protection Act 1998 (DPA 1998) a data subject, such as an employee, has a right, on making a subject access request … Continue Reading

Update regarding protection against religion-based discrimination in France

In France, the issue of religious behavior in the workplace is extremely sensitive.

The principle under French employment law is that while public sector employers are required to enforce a policy of strict neutrality, in private sector companies, a balance must be maintained between the principle of secularism and the prohibition of discrimination based on religious beliefs.

On this basis, French employers can limit certain religious’ behavior in the workplace if :

  • the prohibition is justified by the nature of the tasks to be performed by the employees,
  • the prohibition responds to a determining and essential professional requirement, and
  • the
Continue Reading

Arbitrator Upholds Termination of Nurse for Patient Privacy Breaches

There is a growing body of arbitral jurisprudence upholding summary dismissal of employees who breached workplace codes of conduct, confidentiality and privacy policies by deliberately snooping into co-worker or client records without any legitimate purpose and for reasons of their own.  A number of these cases have concerned privacy breaches by hospital employees.  Ontario Nurses’ Association v. Norfolk General Hospital, 2015 CanLII 62332, is a fairly recent example.

The case involved a registered nurse who had been employed for 12 years at the Norfolk General Hospital in Simcoe, Ontario.  Her job required her to enter patient care notes and use … Continue Reading

Covert Video Surveillance Overturns Wrongful Dismissal Case

In a preliminary award, an Ontario arbitrator allowed covert video surveillance footage to be used as evidence in a wrongful dismissal grievance. The complainant, Mr. Donnelly, was one of three elementary school custodians dismissed for allegedly smoking marijuana, adjacent to school grounds during working hours.

The wrongful dismissal case between Ottawa-Carleton District School Board and Ontario Secondary School Teachers’ Federation, District 25 (Donnelly Grievance) was mediated by Arbitrator Knopf.

The three dismissed custodians were reported by a fellow employee who maintained alleged marijuana use and trafficking, while at work. Following the report, the Board’s Director of Human Resources sought approval … Continue Reading

Not all Messages Constitute #Justcause

In a time where social media is everywhere and a business’s reputation means everything, employers continue to try and understand how certain posts on social media can justify an employee’s termination in the appropriate circumstances.

In  MacKinnon v Helpline Inc., the Court ruled that an employee’s private, non-confidential, off-duty communications via Facebook and MSN e-mail to a third party reporter did not constitute just cause for that employee’s dismissal.

The reporter had approached the employee and informed her of problems a member of the board of the employer had encountered prior to working for the employer. The … Continue Reading

To name or not to name, that is the question…

Surprisingly, name tag policies have become the subject of recent litigation and labour board decisions on the topic have been hitting the news. However, the resulting litigation still leaves room for debate. In the recent decision of Prairie North Health Region v Canadian Union of Public Employees, Local 5111, an arbitration board in Saskatchewan held that the policy was an impermissible intrusion on employee privacy. However, in a previous decision of the Ontario Labour Relations Board, displaying last names on police officer badges was deemed to be acceptable.

Why were name tags allowed in one instance but not … Continue Reading

Monitoring an Employee’s use of the internet

The European Court of Human Rights (ECHR) has held that an employee’s right to respect for private life and correspondence is not breached where an employer monitors the employee’s personal communications at work, subject to reasonableness and proportionality. Whilst this has caused a large amount of media interest in the UK, employers should be aware that this case does not entitle employers to monitor all employee’s emails and social media sites.

In the case from the Romanian courts, an employee was using a business Yahoo messenger account (which he had set up at his employer’s request) to send and receive … Continue Reading

Masking the Issue: Arbitrator strikes down hospital rule that requires Nurses to wear Masks or get the Flu Shot

Can hospitals implement policies that require nurses to get a flu shot or wear a mask? An Arbitrator in Ontario says no. This has left about 30 Ontario hospitals who implemented such policies unable to enforce them.

The test case involved Sault Area Hospital (“SAH”) in Sault Ste. Marie. The hospital introduced a “Vaccinate or Mask” (“VOM”) policy that required healthcare workers to wear surgical/procedure masks throughout the flu season if they did not receive the vaccination for influenza. The grievance alleged that the policy was an unreasonable exercise of management rights and a breach … Continue Reading

Duty of fairness extends to performance file for Government employee

A recent decision of the Federal Court has affirmed the importance of a Federal government employee’s right to procedural fairness.

The dispute centred around whether an employee, in appealing his annual performance review, was entitled to see documents explaining his appraisal. The employer, a federal agenct, utilized what is often referred to as a “pay-at-risk” performance rating system. Under this system, an employee’s performance rating is used to determine the amount of their annual bonus, or “performance award”.

Upon receiving a negative performance rating, the employee appealed to his direct supervisor and then to the Assistant Deputy Minister. Both appeals … Continue Reading

Employer may access text messages exchanged via a professional mobile telephone

The legal context

Issues regarding the ability of an employer to access messages and files exchanged by its employees using employer-supplied messaging networks or, more generally, devices placed at their disposal, occur quite frequently in the workplace and have given rise to a significant amount of case law.

In principle, and from a French employment law perspective, the relevant court decisions have laid down strict principles regarding employers’ access to emails and files on professional devices placed at the disposal of employees, under which employees’ emails and files identified as “personal” or “private” or stored in a folder with a … Continue Reading

Religious and other beliefs – what protection from discrimination do employees have in France?

The place of religion and other beliefs within the workplace is fairly controversial, especially in France where the principle of secularism is deeply entrenched in the society as a whole. In this context, the pivotal issue is to determine the extent to which employees can be part of a professional environment and still live in accordance with their beliefs.

As a preliminary comment, and with respect to religion, it should be noted that the principle of secularism – which prohibits in particular the display of any religious signs and require workers to behave according to a principle of religious neutrality … Continue Reading

Employees’ right and obligations relating to the use of social media

This post was contributed by Yanet C. Aguiar, Partner, and Valentina Albarrán, Associate, Norton Rose Fulbright Caracas.

Social media has become the new way of expression of everyone, from children to adults, now more than ever people share their lives. There is no question about each person’s right to share as much of their personal lives as they find appropriate, but that question remains as to whether or not people can share as much as their personal lives as they find appropriate from their work place, during working hours and using working tools.

There are no specific laws or regulations … Continue Reading

Case Brief: On the rights of grievors to claim anonymity

In October 2013, an arbitrator rejected a union argument that publication of individuals’ names in an arbitral award was possible only with their consent. In Sunrise Poultry Processors Ltd. v. United Food & Commercial Workers, Local 1518, 2013 CanLII 70673, the arbitrator held that disclosure was favoured as a general rule and that no justification had been provided to depart from that general rule on the facts before him. The grievor’s offence was a disciplinary one and he had provided no specific circumstances to distinguish himself from any other person in a similar situation. The arbitrator held that … Continue Reading

We filter: Crafting An affirmative defense to sexual harassment?

Many employers have implemented policies and procedures to protect employees from harassment in the electronic work space in an effort to limit liability.

EEOC statistics suggest that claims of unlawful harassment through electronic communications, including emails, pornographic websites, and sexual comments on social media and blogs make up an increasing percentage of sexual harassment charges and lawsuits.

Few court decisions address whether harassment by electronic conduct should be treated differently than physical or verbal forms of unlawful conduct.

Yet, in an age where employers provide computers, email accounts, and internet access to employees, efforts to filter and block offensive conduct … Continue Reading

Right to Privacy of Those Crossing Picket Lines in Canada

The importance of  the Internet has given rise to a considerable amount of litigation on the topics of protection of privacy and freedom of expression. In a recent judgment, the Supreme Court of Canada was asked to consider a novel issue: the use of personal information as a means to dissuade individuals from crossing a picket line.

The Supreme Court’s Decision

The events that led to the Court’s decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, took place in 2006, when the trade union at the Palace Casino at … Continue Reading

ATTENTION AUX EMPLOYEURS : SURVEILLEZ VOS DÉLAIS ET VOS CAMÉRAS-VIDÉOS!

L’employeur peut-il installer des caméras-vidéos sur les lieux du travail pour des raisons opérationnelles?  Telle est la question  se posant dans l’affaire Syndicat des travailleurs de Continental Asphalte (C.S.N.). et 9163-7272 Québec inc. (division de Construction DJL inc.), AZ-51013413, rendue le 26 septembre 2013 par l’arbitre Nicolas Cliche.

L’arbitre est saisi d’un grief du syndicat qui réclame le retrait des caméras-vidéos installées sur l’immense site de la compagnie.

En premier lieu, l’arbitre accueille le moyen préliminaire présenté par l’employeur portant sur le délai entre l’installation des caméras-vidéos (2003) et le dépôt du grief (2010).

En second lieu, l’arbitre est d’avis … Continue Reading

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