By Nicola Walker, head of employment, London, Hogan & Hartson
When the Human Rights Act came into force in October 2000, it was hailed as
a major new development. For the first time, a set of legal principles
enshrined basic fundamental human rights. It hasn’t triggered a revolution, or
changed our daily lives, but it has brought a greater awareness of the
importance of human rights into the workplace.
Employers should take careful note of the parts of the law that relate to
the Human Rights Act, which sets out 12 specific rights without discrimination
on any grounds. They range from the fundamental right to life and the
prohibition of torture, through to the right to freedom of expression and the
right to marry.
Q What parts of the Human Rights Act are relevant to HR and the
workplace, and can a worker sue an employer under the Act?
A For HR managers, the most important right is the one in Article 8,
which states: "everyone has the right to respect for his private and
family life, his home and his correspondence".
The only exception where interference from public authorities is permitted
is in situations such as the interests of national security, public safety or
the prevention of disorder or crime. It doesn’t grant a worker in the private
sector the right to sue their employer, although any public authority must be
very aware of the fundamental right to privacy.
Q How does the Data Protection Act relate to the Human Rights Act?
A The Data Protection Act 1998 was brought into force to implement
the Data Protection Directive. The Information Commissioner, supervises and
enforces this Act and the Freedom of Information Act 2000. It’s four-part code,
entitled The Employment Practices Data Protection Code. has been drawn up for
employers with the right to privacy in mind.
For HR managers, this code is essential reading. It addresses aspects of
dealing with staff where their rights to privacy may arise, such as recruitment
and selection, record management and, most importantly, given the Human Rights
Act, monitoring at work. The section on medical information is not yet
available.
This code took time to prepare, and employers still complain it is overly
complex and difficult to follow. For the time being, however, it represents
best practice and remains a useful guide to the Data Protection Act in the
workplace.
Q Does the Data Protection Act bar the right to monitor staff at work?
A Part 3, which deals with monitoring at work, attempts to address
the thorny question of when a working individual, using a computer, telephone
or any other facility provided by their employer, may still expect to have a
degree of privacy.
The code points out that monitoring can take place in a number of different
ways. Some monitoring is systematic and routine. For example, in certain
contexts, telephone calls are routinely recorded to protect both businesses and
the worker.
In other situations, a worker may find that their computer records are only
examined when they are off sick to establish what work needs to be undertaken
in their absence.
Q If an employer feels it has to monitor a staff member, how does it stay
on the right side of the law?
A The essence of the code is that employers should evaluate if and
how to carry out monitoring by an impact assessment. The employer should
clearly identify the purpose behind the monitoring and its potential benefits,
and consider any likely adverse impact.
The overall objective is to judge whether the monitoring is justified, and
to select the method that will cause the least intrusion into private lives,
while achieving the necessary results.
Q Does an employee have to know they are being monitored?
A Informing staff about the monitoring arrangements, as well as
consultation and consideration of the process, are tenets of the code.
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The Regulation of Investigatory Powers Act and the Lawful Business Practice
Regulations set out when interception of communications can take place.
Where an individual has an expectation that a location and form of
communication is private, they should be informed and given a chance to adjust
their arrangements before that ceases to be the case.
