English - UK	English-Overseas	Brain Teasers
Français	What I need is...	Links
Deutsch	newsletter	email us

Commercial Angles' Newsletter - September 2001

Workplace surveillance

There have been a number of so-called "Big Brother" regulations introduced in the last few months which allow employers to monitor the communications activities of their employees. At more or less the same time other legislation or regulations have been passed or proposed which prohibit employers from "Big Brother" activities. Some of these provisions also appear to conflict with earlier statutes. So what is allowed and what is prohibited? Where is the borderline between genuine business concerns and unwarranted intrusion into an individual's privacy? And do the various laws permit forms of monitoring other than intercepting faxes, emails and telephone calls at work?

Human Rights Act 1998

The Human Rights Act (HRA) came into force on 2 October 2000 and was described by some as the most important piece of legislation since the Magna Carta. Under HRA the principles of the European Convention for the Protection of Human Rights were incorporated into UK law. These principles give an individual the right to:

not be discriminated against on grounds of sex, race, religion and political opinion;
a fair trial;
respect for privacy and family life;
freedom of thought, conscience and religion;
not be tortured or subject to inhuman or degrading treatment.

HRA applies directly only to actions taken by public bodies but the principles are bound to be taken into consideration elsewhere by courts and tribunals. However, in the workplace most of these rights are subject to limitation if an employer can show that the infringements are necessary to protect others.

Regulation of Investigatory Powers Act 2000

The Regulation of Investigatory Powers Act 2000 (RIPA) permitted organisations to monitor telephone calls, faxes and emails but only with the consent of the employees and the express or implied consent of external parties concerned in the communications being monitored. Most of us have made calls to government office help desks or to financial companies and received a recorded message that calls may be recorded for "training" purposes. By continuing with the telephone call we implicitly consent to the call being recorded. Employers believed this Act was not strong enough and did not permit them to do whatever might be necessary to protect companies and their assets. The result was the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 - the LBP.

The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000

The LBP permitted employers, from 24 October 2000, to monitor and/or record many communications without consent in order to:

establish facts relevant to the business e.g.orders taken over the telephone;
ascertain employees' compliance with the law and/or self-regulatory policies and procedures;
ascertain whether employees attained the organisation's standards;
prevent or detect crime;
investigate or detect unauthorised use of the telecommunications system;
ensure the system's effective operation.

The LBP permitted employers to monitor but not record communications without consent in order to:

determine whether or not communications are business-related;
monitor communications to a confidential support helpline.

Office of the Information Commissioner's draft employment code of practice

Employee rights groups argued that LBP was drafted too broadly and permitted employers to do virtually any monitoring they wished. They argued that the LBP breached individuals' rights to privacy under Article 8 of HRA. The Information Commissioner, (formerly the Data Protection Registrar), stated that to comply with the Office of the Information Commissioner's draft employment code of practice, employers had to bear in mind that any intrusion on an employee's privacy or autonomy should be in proportion to the benefits of the monitoring to a reasonable employer. The Information Commissioner went on to say that employees had a right to expect a degree of trust from their employers and to be given reasonable freedom to act in the course of their duties without constantly being watched or asked to justify their actions.

The draft employment code of practice remains in draft form because of wide disagreement with its contents. The Information Commissioner decided to ask outside to consultants to help revise the code of practice in the light of the various comments received; tenders to carry out this work being due by 14 September 2001. Therefore it will be several months before the various grey areas are resolved.

Probable outcome

The employment code of practice, when it is published, will probably limit the LBP regulations so that any intrusions into an employee's privacy or autonomy should be in proportion to the benefits or potential risks to the employer. This long-running debate may finally end but the implications for employers are important. Could an employee claim constructive dismissal if communications have been monitored incorrectly? Could a tribunal refuse to accept intercepted communications, inappropriately obtained, as evidence of wrong-doing in an unfair dismissal claim?

Other surveillance methods

To protect an employer's assets it may be necessary to search employees as they leave the company's premises. An employer only has the right to search employees or their vehicles, parked on company property, if the employees' contracts of employment specifically reserve this right to the employer. Otherwise, searching an employee without their consent amounts to assault. An employer has no rights to search employees or their houses/vehicles off the company's premises. If an employee is thought to have company property, unauthorised or unlawfully in his possession outside the company's premises, it is usually best for the police to be involved if the matter is to be pursued.

But what if employees are suspected of operating against the best interests of their employer whilst they are off-site during working hours? It is lawful for an employer to carry out surveillance off-site either in person or by using private investigators in order to track an employee's movements and to find out what contacts he has made. However the employer should ensure that his actions are legal, are in proportion to the perceived threat and not unduly intimidating.

Articles from previous newsletters