Watching brief

"Employees’ privacy needs more protection from Big Brother employers."  This was the motion for an unprecedented
debate between the Employment Lawyers’ Association and the Institute of Personnel
and Development recently.  The vote was
split, perhaps unsurprisingly, with lawyers going with the motion and employers
against.  (The lawyers won).  Here are the arguments

For the motion: Robin Allen QC and Rory Murphy, joint general
secretary of finance union Unifi.

Against: Jose Pottinger, director of the US diesel engine
manufacturer Cummins and Dr Clive Morton, independent HR consultant.

Robin Allen QC

Parliament has failed to take a lead in the question of privacy at work. The
Human Rights Act will come into effect on 2 October. It introduces into
domestic law article 8 of the European Convention on Human Rights, which says,
"Everyone shall have the right to respect for his private and family life,
his home and his correspondence."

But it is not an absolute right; it permits interference by a public
authority in the exercise of this right in certain well-defined circumstances.
That seems sensible but our staff want to know if this means they have a right
to privacy and a remedy when it is breached.

The short answer is that right now they do not. In that respect the Act is
really a tease. It imposes duties on the state and public authorities.
Employees of public authorities will be able to enforce article 8 against their
employers.

Of course, employment tribunals are also public authorities and will be
under a duty under section 6 of the Act in the way they carry out their work to
respect article 8. They may recognise the duty on them to respect the private
life of employees who bring their cases before tribunals, but there will be no
independent course of action for breach of privacy that an employee of a
private employer will be able to assert. So article 8 will have only an
indirect impact on the private workplace.

The striking conclusion is that employees’ privacy is the most important
part of the work relationship that remains without any specific comprehensive
protective legislation, whereas dismissals, payment of wages, health and safety
at work, whistleblowing, redundancy, trade union rights, sex and race
discrimination and, of course, Tupe are all expressly covered.

Employees’ privacy does not even have a specific common law protection.
Employer and employee are free to contract on any terms they like. So if there
is no express prohibition or limitation on the e-mails an employer can read or
the monitoring it can carry out, it is not obvious how such a restriction can
be read into a contract. After all, there may be good reasons why an employer
might wish to see a specific e-mail or listen to a specific voicemail.

What we need is a statutory code to steer us all through that conflict
between an employer’s property interests and the individual’s dignity. In
drafting such provisions the employer’s property interests in the workplace are
not to be ignored for a moment, but it is equally important that neither should
the dignity of the individual be forgotten. This is both an employee’s rightful
expectation of a fundamental human right and good business. The need for
dignity at work is paramount.

If we conclude that we are merely here as wage slaves crawling through the
rush hour to our technologically controlled workplace where each minute of our
lives can be counted as productive or non-productive, each conversation
recorded and assessed on the basis of its contribution to the bottom line, our
dignity is lost. Remember, if you take away your employees’ dignity, it will
only be a matter of time before some bigger fish in the corporate pond treats
you in the same way.

The best employers are already beginning to recognise that there has to be
consultation and agreement about what is on and off limits at work. The
fundamental right to privacy is so important, however, that the state cannot
leave it to ad hoc decisions. The relationship between employer and employee is
not one of equality. Some employers will not see the need to respect the
individual and will be interested only in their own property rights.

So here the rule of law is as important in the workplace as in any other
part of society. Article 8 will not work without more. In my view Parliament
must grasp the nettle and legislate a key code for protection of privacy. If
Parliament does not grasp the nettle, the judges will.

Rory Murphy

Surveillance is the antithesis of privacy and is widespread throughout
society. Closed circuit television is a part of everyday life in our towns and
city centres. There is no absolute right to privacy in this country.
Consequently, as the technology becomes more available, it will be open to the
state and employers to use it with few limitations.

Employers use surveillance in an overt way to monitor performance and deter
what it deems to be unacceptable activities. As layers of management have been
removed from most organisations, surveillance has enabled control to be pushed
ever further downwards to lower levels. This has added to the effect of
creating division between team leaders and other employees. Some employers
include trade union business in the category of unacceptable activity – one
tried to discipline a Unifi member for contacting an official from the
workplace.

Covert surveillance is used with the specific intention of catching staff
out – entrapment. Where reasons are given for surveillance, employers do not
then ignore other information that comes to light. For example, Leeds
Metropolitan University installed cameras to try to catch a drug dealer
operating in its grounds. It failed to catch anyone but did get on record a
cleaning supervisor making remarks about her line manager. She was disciplined
as a result.

Employers would justify the use of surveillance on the grounds of deterring
criminal activity but this alone, in my view, cannot justify the extent to
which surveillance is used.

A major supplier of surveillance equipment has more than 2,500 clients, of
which 95 per cent are employers. In 1998, more than 250,000 covert cameras were
sold in the UK. There is also an unpublished survey of 103 heads of security,
from big multinationals to small companies, which reveals that 63 per cent had
experienced bugging in their organisations; 73 per cent could foresee a
situation which would justify the use of bugging and 93 per cent said using
bugs for solving crime is legitimate.

Although there is some legislation coming into force this year which will
give employees greater rights, it is not clear whether this will stop employers
using surveillance.

The Data Protection Act gives employees the right to know what information
is held in their personal file, why that information is being held and who has
access to it. It also states that employees must give their consent for
personal calls to be recorded and for e-mails to be accessed. Telecoms watchdog
Oftel has already issued a code of practice for employers which calls for
separate telephone lines to be made available to employees which are free from
monitoring. Little notice, to our knowledge, has been taken of this.

The code of practice also states that where call monitoring exists, both the
caller and the agent should be informed that the call could be monitored.

The Telecom Data Protection directive, due to come into force in October,
will introduce a clause aimed at limiting an employer’s ability to record an
employee’s personal telephone conversations and will, we hope, apply to e-mails
as well.

But the best protection for employees against intrusive surveillance remains
a strong unionised workplace. Unifi can use the new pieces of legislation to support
the negotiation of collective agreements on surveillance in the workplace.

Dr Clive Morton

It would be almost impossible for legislation to address all the issues to
which surveillance gives rise; forms of surveillance which are justified and
sensible in one kind of work may be oppressive and unwarranted in another.
CCTV, for example, may be desired by some employees, such as train workers, as
protection against the risk of assault, yet detested perhaps by others.
Basically what that gives us is a potential nightmare – or perhaps employment
for employment lawyers.

There is, I believe, a better solution. It has been suggested that rather
than pinning hopes on new legislation – which no political party has much
enthusiasm to enact – or on incorporating the European Convention on Human
Rights’ right to privacy, a better means of regulation is through an expanded
scope of collective bargaining or workplace agreements backed by legal
guarantees and incentives.

So the solution should be: employer policies, openness, consultation and
workplace agreements. Of course there is a draft code of practice from the Data
Protection Registrar on the way, which is actually about informing or
consulting over new technology or monitoring; why new methods are being introduced
and how the results will be used; consulting trade unions, where they are
recognised; and limiting undeclared or covert surveillance to crime or serious
misconduct.

The key issue is not to damage trust. By having more legislation trust will
be damaged.

Let us look at some recent cases which have been raised in Labour Research
in 1998. Some brewery workers were sacked for drinking beer at work and a bank
employee was sacked for gross misconduct for bringing the employer into
disrepute when a computer print-out showed that a customer on the telephone had
been repeatedly cut off. And there are concerns about mystery shoppers employed
by banks or retailers to check on customer service.

What is this issue? Is it perhaps that white-collar staff are suddenly
coming under scrutiny in the way their blue-collar colleagues always have been?
Perhaps some people are realising that performance has to be achieved.

My summary is simple: there is already enough legislation and protection; it
is not practical to extend. The law – and even all lawyers must agree – is a
blunt instrument; the best solutions are there through good employer policies
and perhaps a draft code of practice. The key issue is one of trust and
light-touch monitoring.

Jose Pottinger

My instinct is to support steps which will inhibit the Big Brother factor.
But this is an emotional rather than a rational reaction. Properly managed,
surveillance is at best a replication of a form of supervision and, in more
acute circumstances, a way of protecting both employee and organisational
interests.

Contrary to the myth of "trigger-happy" employers who set out to
spy on their workforce, they often have other functions in mind, for example controlling
work flow where the capacity to monitor individuals’ work is simply a
by-product of the system.

Systems capable of surveillance include expert decision, support tools,
computerised databases and reporting systems, e-mail monitoring, swipe card access
control and monitoring systems. In some cases, managers make no use of the
capacity to use such systems to monitor employees’ behaviour.

In the absence of a specific problem, it is unlikely that employers will
spend time and resources on monitoring staff simply because they have the
capability to do so. Why would they seek to jeopardise rather than nurture that
very critical and crucial relationship?

Sometimes these types of technologies, appropriately deployed within the
workforce and communicated in a suitable way, can be helpful to the business
and the employees.

Many employers, for example in call centres, routinely monitor incoming
telephone calls. The reason is they want to keep a check on the quality of
service being offered to customers. The whole purpose of setting up call
centres is, in many instances, to ensure high levels of customer service while
minimising costs. There is nothing reprehensible about that.

Monitoring calls can also of course be a useful way to train employees and
protect them against abusive calls – this is a two-way street. Take also the
monitoring of employees’ e-mail and use of the Internet. Some employees are
misled by the speed and ease of access of e-mail communication and regard it as
informal, anonymous and transient. This is not so. Offences to which employees’
use of e-mail can give rise include sexual harassment and defamation.

When we are trying to create a working environment where there is no
detriment to particular groups of people then, as employers, we have a
responsibility for the actions of our employees and we must have methods which
enable us to control unacceptable activity.

Employers do not monitor employees in the workplace because they want to
gain some kind of advantage; they are generally doing no more than managers
have to if they are to take responsibility for the service they are offering
and protect the interests of customers and employees.

It is sometimes assumed that employees resent being monitored and see it as
an intrusion of their privacy. There is some but not a lot of evidence to
support this view. The most detailed and objective study of which I am aware is
being undertaken by researchers at the University of Plymouth as part of the
Virtual Society Research Programme funded by the Economic and Social Research
Council. The study has found that privacy, or a decrease in privacy in relation
to their work, does not seem to be an issue for employees.

Employers monitor not just to improve work output but to understand some of
the root-cause issues that impact on productivity in the workplace. If we are
going to create high performance cultures then we need not to pry into
employees’ personal lives but to have some empathy for the experiences that
they may be going through outside work.

Privacy is not a concept that is easy to interpret or give practical
expression to in many workplaces. When we are talking about monitoring, we are
not talking about employers passing on sensitive information about employees to
people outside the organisation, we are talking about the way in which work is
managed. Companies in the information society cannot inspect quality as in a
physical product – they have to maintain standards of service by other means.

If there is an issue here it is not about the application of new
technologies but about how managers use it. If managers view performance data
obtained by electronic means to demand unrealistic performance standards or
support soul-destroying and repetitive work, then employees will vote with
their feet and leave. This is not good management and I do not seek to defend
it.

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