Author: Timothy Pitt-Payne KC

Recruiting the iPod generation

Posted on | by Timothy Pitt-Payne KC

In an article in today’s Financial Times, Benjamin Akande of Webster University talks about the “iPoders” – the generation born between 1982 and 2000.  He describes a generation of technology addicts, using the internet as its first resort for information-gathering, and nurturing personal relationships through social networking and twittering.  According to Akande, as it enters the workforce this cohort will be looking for organisations that share its appetite for technological innovation. 

One issue that Akande doesn’t discuss is how iPoders view their personal privacy.  How will they react if their technology-aware future employers treat Facebook and MySpace as a legitimate part of pre-recruitment due diligence?  It’s often suggested that today’s 20-somethings are deeply relaxed about information privacy.  A more realistic view may be that, as early adopters of social networking technology, they are learning the hard way about the implications of putting personal information online.  In 2007, Oxford University students were outraged when photographs on Facebook were used in order to crack down on post-exam celebrations. 

At the same time, employers need to be cautious about googling their job applicants.  For instance, interview panels know not to ask questions about any plans for starting a family.  But what if one of the interviewers finds out information of this kind, from his online researches into the candidates?  Unless the information is wholly disregarded, there is an obvious risk of a discrimination claim if the candidate is rejected.

A suitable case for recruitment

Posted on | by Timothy Pitt-Payne KC

 Information law overlaps with employment law in two main ways, in relation to employment vetting and employment monitoring. Broadly speaking vetting is about the enquiries that an employer can make before recruitment, and monitoring is about checking on the performance and behavior of existing employees.

 
The legal framework for employment vetting is changing radically, as the Safeguarding Vulnerable Groups Act 2006 is brought into force. The Act implements the Bichard Report, which followed an inquiry into the notorious 2002 Soham murders. It establishes a new vetting and barring scheme for those working with children or vulnerable adults, to be operated by a statutory body called the Independent Safeguarding Authority (ISA).

 
With effect from 20th January 2009, the ISA was given responsibility for decision-making under the 3 existing employment barring lists: the education list, (popularly known as “List 99”), the PoCA list (for those working with children) and the PoVa list (for those working with vulnerable adults). As from 12th October 2009 these 3 lists will be replaced by two new lists introduced by section 2 of the 2006 Act and maintained by the ISA –  the children’s barred list and the adults’ barred list.  Employers, social services and professional regulators will have a duty to share information with the ISA. From July 2010, new entrants to roles working with vulnerable groups and those switching jobs within the sector will be able to register with the ISA, and employers will be able to check registration status online. The legal requirement for new entrants and those moving jobs to register with the ISA, and for employers to check on their status, will come into force by November 2010. The intention is to bring the whole of the existing workforce into the scheme by 2015.

 
I will be delivering a paper about employment vetting at the Local Government Group conference on 29th April, and the paper will be available on 11KBW’s website after the conference.  For consideration of whether the existing PoVA list is compatible with articles 6 and 8 of the European Convention on Human Rights, see R (ota Wright) v Secretary of State [2009] UKHL 3.  For the timetable for implementing the 2006 Act, see here and here.

Links and resources

Posted on | by Timothy Pitt-Payne KC

On the left hand side of this page you will see a list of links.  The first link is to a collection of information law resources on 11KBW’s main website.  There are conference papers and other materials written by members of chambers;  in particular there is an 80 page practical guide to the Environmental Information Regulations, written by Anya Proops.   In discussions of FOI, we find that the EIR tend to be unduly neglected;  Anya’s guide is a contribution to redressing the balance.

You will also find links to online resources maintained by a wide range of organisations and individuals:  Government departments, regulators (both in the UK and overseas), academic institutions, legal practitioners, campaigners and bloggers.   If you think that there is anything that we should add, please email me on Timothy.Pitt-Payne@11kbw.com .  Needless to say, we don’t take responsibility for the information or opinions posted on any of these external sites.

Many thanks to all those who have provided feedback and encouragement following our launch last week.  Particular thanks to Delia Venables for the speed with which she added us to her comprehensive listing of online legal resources in the UK and Ireland.

OGC publishes Gateway Reviews

Posted on | by Timothy Pitt-Payne KC

Following a decision of the Information Tribunal issued on 19th February, the OGC has published two Gateway Reviews into the ID cards scheme.

The OGC announcement is here (with a link to the documents themselves). The Information Tribunal decision is here, on the Tribunal’s website. This case was previously the subject of a High Court appeal (from an earlier Tribunal decision).

Revising FOIA?

Posted on | by Timothy Pitt-Payne KC

Tucked away in Jack Straw’s House of Commons statement (24th February 2009) about the veto on disclosure of the Iraq War Cabinet minutes is the following intriguing passage:

Shortly after he became Prime Minister, my right hon. Friend the Prime Minister established a high-level inquiry into the 30-year rule under the chairmanship of Mr. Paul Dacre of the Daily Mail. That report, published last month, proposed a reduction from 30 to 15 years of the time after which Cabinet minutes and other papers would automatically be released. I have already told the House that the Government favour a substantial reduction in the 30-year limit. In that context, the report also recommended that we consider protection under the Act for certain categories of information.

The reference to the Dacre Report relates to the following section in chapter 8 of the Report:

8.7 As we noted in Chapter Five, there are genuine concerns among some ministers and civil servants about the early release of particularly sensitive types of papers … Given that we are recommending a substantial reduction to the 30 year rule, we believe that the government may wish to look again at the exemptions set out in the FoI Act.

8.8 We therefore recommend that, in parallel with the adoption of a 15 year rule, the government, in consultation with interested parties, may wish to consider whether there is a case for enhanced protection of such categories of information.

So what may be under consideration is a change along the following lines.  The 30 year rule would be replaced by a 15 year rule; and at the same time some categories of information that are at present covered by a qualified exemption under the Freedom of Information Act 2000 would become subject to absolute exemption.  Possible candidates for this treatment might be Cabinet minutes, or some forms of policy advice in central Government.  A change of this nature might not even need primary legislation; an attempt could be made to implement the change by making an order under section 7(3) of the Freedom of Information Act.  This was the technique that was used in the recent (abandoned) attempt to amend FOIA in relation to MPs expenses:  see https://news.bbc.co.uk/1/hi/uk_politics/7839281.stm

I would make two brief comments.  One is that the Dacre proposals in relation to the 30 year rule envisage that the change to a 15 year rule would be made over a long transitional period, coming fully into effect by 2025.  Presumably any change in the FOIA exemptions would not be subject to any corresponding transition.  A second is that the Environmental Information Regulations 2004 (EIR) could not be amended in the same way, since they implement a European Directive.  So if the FOIA exemptions are tightened, expect a great deal more argument about whether particular requests fall within FOIA or EIR.

For Jack Straw’s statement see:

https://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090224/debtext/90224-0004.htm#09022444000162

For the Dacre Report see:

https://www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf

Facebook at work

Posted on | by Timothy Pitt-Payne KC

I’m a great admirer of Pinsent Mason’s “Out-Law” website.  It’s a fascinating source of information law material. 

Today, there’s an opinion piece about the use of social networking sites by employees.  It argues that in some circumstances employers are entitled to control the use that employees make of sites such as Facebook, even outside working hours.    There is a risk of reputational damage:  for instance, a newspaper that aims for politically impartial journalism could be damaged if its writers reveal their own personal political views online.

Personal use of the internet during working time is a legitimate concern to employers – just as they may rightly be concerned about the use of the phone system for long private calls.  But what about curtailing employees’ freedom of expression and social interaction in their own time?  It is suggested that any employer who went down this route would need both a very strong justification, and a tightly-drawn policy that was clearly communicated to their employees.

In considering any specific case, careful consideration would need to be given by employers to how widely any objectionable material posted by an employee could be viewed – was it visible to a small group of friends, for instance, or to a network of millions of people?

There’s a much broader issue here.   Social networking is very widespread indeed among today’s student generation.  When they begin their working lives, will they find that their online activity impedes their search for a job?  Or that it comes back to haunt them later in their working lives? 

The reference for the opinion piece discussed above is at:

https://www.out-law.com//default.aspx?page=9738

For discussion of the issues that arise when an employer considers that an employee’s online activities are damaging to its reputation, see Pay v Lancashire Probation Service, available online at:

https://www.employmentappeals.gov.uk/Public/Upload/EAT1224021192003.doc