The Human Rights Act 1998 (HRA) implemented the European Convention for the Protection of Human Rights and Fundamental Freedoms in the UK. In relation to HR, the biggest issue was the impact of Article 8 which states that “everyone has the right to respect for his private and family life, his home and correspondence”. Many saw this right of privacy as blocking an employer from putting into place monitoring arrangements regarding its employees, but it hasn’t.
Why hasn’t the HRA stopped employers monitoring their staff?
The HRA only affects covert surveillance. So where the employee knows that monitoring is being carried out, there is no expectation of privacy. In addition, the HRA only applies to public bodies in this regard. However, if an employment claim was made and the employer wanted to use evidence obtained through covert surveillance, the tribunal or court, as public bodies, would have to consider whether it could admit evidence obtained in this manner.
If we monitor an employee and find that they are guilty of misconduct, can we use the evidence from the surveillance to defend an unfair dismissal claim?
The right to privacy under the HRA will only be upheld as long as it does not infringe upon other rights. This means if evidence obtained in breach of an individual’s right to privacy is crucial to another individual’s trial (hereby infringing upon the right to a fair trial), it may then be accepted as evidence.
A recent case – McGowan v Scottish Water – demonstrated this in practice. An employee claimed unfair dismissal, but his employer argued he had been forging his timesheets. The employer had carried out covert video surveillance of the employee’s home to get evidence of when the employee left for and returned from work, and then compared those times with his timesheets. The issue in the tribunal was whether the video evidence breached the HRA because it had been obtained covertly and, therefore, ignored the respect for his private life. However, the court held that the surveillance operation was not disproportionate to the circumstances and was undertaken to protect the employer’s assets. Therefore, the video surveillance was accepted as evidence.
Does the HRA have any impact on monitoring inside the workplace?
Covert monitoring in the workplace may also raise human rights issues if carried out when the employee has a legitimate expectation of privacy. In the case of Halford v UK, the telephone calls of a police officer made from the office were secretly tapped. The European Court of Justice confirmed that the employer had interfered with the employee’s ‘private life’. In this situation, the employee had a reasonable expectation that the calls she made were private.
Can an employer ever carry out secret monitoring in the workplace?
There may be exceptional circumstances when covert monitoring in the workplace will be justifiable. Usually, this will be restricted to incidents where there are reasons to suspect criminal activity or extremely serious malpractice. It should only be authorised by senior management, and the monitoring should be strictly targeted. It should also only be carried out for the period of time necessary.
Will we breach any other legislation by installing covert monitoring?
The provisions of the Data Protection Act 1998 (DPA), the Regulation of Investigatory Powers Act 2000 and the Telecommunications Lawful Business Practice Regulations 2000 will need to be taken into consideration.
The DPA relates to the fair processing of the information from the monitoring. Where covert monitoring has been carried out, the number of people involved in the processing of the evidence should be kept to a minimum. The other two statutory provisions restrict the interception of electronic communications and apply to secret telephone or e-mail monitoring.
So would it be in breach of human rights to openly install CCTV?
If the cameras are not hidden and notice is given about the fact that filming is taking place, there should be no grounds to complain under the HRA, although an employee filmed by visible CCTV cameras may complain about the inappropriate use or disclosure of the film.
In the case of Peck v United Kingdom, an attempted suicide was caught on CCTV and the footage was shown on television. When the man complained, the court said filming an individual in a public place did not interfere with private life. However, since he was not there to participate in any public event, the disclosure of the film breached the HRA.