How to stop monitoring turning into snooping

Clear policies on monitoring staff telecommunications are needed to avoid falling foul of employees’ privacy rights.

Has the scene been set for a battle royal between apparently conflicting laws and regulations on communication monitoring, or will a sense of proportionality prevail? The solution to the above problem lies in the provisions (and spirit) of the Human Rights Act 1998.

Article 8 of the Act grants individuals the right to respect of their private and family lives and it confirms that there will be no interference with this right, except in certain and limited scenarios.

The Article will be infringed in circumstances in which the individual had a “reasonable expectation of privacy”, notwithstanding that the interference can otherwise be justified under one of the Article’s derogations, or under any other existing legislation.

It is this “reasonable expectation of privacy” and the all-important principle of proportionality, which throw light on what at first appears to be an unholy mess of conflicting acts and regulations in this area of the law.

The Lawful Business Practice Regulations, which came into effect on 24 October this year, have been extensively commented on as they provide circumstances in a business context in which it is lawful to intercept communications without the employee’s consent.

Those circumstances are extremely widely drafted and it is not difficult to see why the Regulations have been labelled a “snooper’s charter”. At first blush, a business will have little difficulty in justifying its snooping on employees’ communications on the basis of one or more of the widely drafted exceptions.

Such a view is over simplistic and ignores not only the backcloth of the Human Rights Act but the detailed provisions and requirements under the existing Data Protection Act 1998 and the new DPA Draft Code of Practice.

The Act rules and regulations apply to any information obtained by the employer once it has been recorded, and sets out penalties for the misuse of that information (see Personnel Today, 7 November).

Furthermore, the Data Protection Commissioner in her draft Code of Practice has confirmed the importance of the principle of proportionality and stated that there should be no monitoring “in which any adverse impact is out of proportion to the benefits”, and said an employee is entitled to “expect a degree of trust from his or her employer”.

Under a strict construction of the Regulations, the employee’s consent (express or implied) to monitoring of his or her telecommunications is no longer required in certain circumstances to render such monitoring lawful. However, such monitoring will be deemed unlawful if it is disproportionate to the objectives and benefits derived and if it infringes the employees’ reasonable expectation of privacy.

From the employers’ point of view, the answer is to have clear policies on telecommunication monitoring which are proportionate and of which all employees are aware.

In these circumstances, interception of communications for “legitimate business reasons”, provided the same is not blanket interception, will be justified.

Furthermore, the availability of software enabling employers to perform “traffic” monitoring of e-mails and to reject e-mails containing industrial language or those with an excessive preponderance of skin tones would certainly assist employers in arguing the “proportionality” of their approach.

By Mark O’Neil, a senior employment solicitor at Sinclair Roche & Temperley, tel: 020-7452 4000, e-mail: mark.o’neil@srtlaw.com

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