New regulations guarding staff privacy mean employers need to tread carefully with their employee surveillance
The Regulation of Investigatory Powers Act 2000 (RIP) is due to come into force in October and replaces the Interception of Telecommunications Act 1985, extending regulation to new technology and e-mail traffic.
From an employment perspective RIP is important because it prohibits the interception of communications in the course of transmission, in the public and private postal and telecommunication services. There are criminal penalties and civil remedies. In practice, RIP gives both the sender and intended recipient of an e-mail intercepted by an employer a right to damages. Exceptions include where the sender and intended recipient have consented.
HRA and Data Protection
RIP takes effect alongside the Human Rights Act 1998 (HRA), which also comes into force next month. This enshrines the European Convention on Human Rights (ECHR) in UK law. With HRA in force, the boundary line on legitimate employee surveillance will be delicately drawn.
In principle, employers should be able to monitor employee activity covertly. Monitoring workplace e-mail traffic may help prevent harassment and surveillance outside the workplace may help prevent malingering
Article 8 ECHR provides a right to respect for private life and correspondence. This is qualified for the prevention of crime and disorder, the protection of health and morals and the protection of the rights and freedoms of others. The difficulty is where to put the boundary between the rights and the qualifications.
HRA creates direct rights against employers in the public sector, but not the private sector. But private sector employers cannot sit back. Since courts and tribunals must interpret legislation consistently with ECHR, a tribunal will have to take its provisions into account in assessing the fairness of a dismissal – in deciding whether the employer acted “reasonably or unreasonably” and what constitutes “equity and the substantial merits of the case”. ECHR will also affect what constitutes a breach of the implied duty of trust and confidence.
The Data Protection Act 1998 (DPA) adds a further dimension. It requires that data is adequate, relevant and accurate and is held for no longer than necessary. Individuals can have access to personal data held about them and this right extends to paper files. CCTV systems are covered too. In addition, Oftel has issued guidance on recording telephone conversations for business purposes.
Looking to the future, the EU is considering a proposal for a European Bill of Rights which would, like ECHR, provide a right of respect for private life.
Employer steps
In the light of these provisions, surveillance of staff must be handled with circumspection. Employers must have appropriate policies, specifying when it may undertake surveillance and why.
Nicholas Moore is head of employment at law firm Osborne Clarke OWA
Key points
- The Regulation of Investigatory Powers Act 2000 restricts employer surveillance of staff communications.
- The Human Rights Act 1998 and Data Protection Act 1998 also impact on surveillance.
- Employers should have clear policies on monitoring.
- Staff representatives should be consulted and consent gained and management training should be undertaken.
