Staff’s phone numbers – are they ex-directory?

Phoning staff at home could land employers in human rights trouble, unless
they use some simple guidelines

The Institute of Management has advised its members that, as a result of the
Human Rights Act 1998 (the HRA), they face legal action if they phone staff at
home. As is often the case, the actual advice does not go that far and
employers who use common sense should not fall foul of employees’ human rights.

The advice forms part of guidelines issued by the Institute of Management to
its 89,000 members regarding the HRA which are very useful for employers. It
concentrates on the key rights in the workplace which are enshrined by the HRA,
namely the right to privacy, freedom of thought, conscience and religion,
freedom of expression and right to a fair trial.

Home phone calls come within the right to privacy and the guidelines
correctly tell their members to keep the right to privacy in mind when calling
staff at home. But the guidelines may be a little simplistic in stating that a
request to a "normal" employee for their home phone number is a
breach of their human rights.

So, practically, what should an employer do?

Most employers will already have their employees’ home phone numbers, as
they will have appeared on their CVs or application forms. And most staff will
not object to providing a number, although mobile numbers can be sensitive,
particularly if the phone is not the company’s.

If an employee refuses a request for a home phone number or an update of the
number then, notwithstanding the HRA, this could be a refusal to obey a
reasonable order. But before rushing off to discipline the employee, an employer
should bear in mind the following:

– Whether there is a contractual provision that states employees should
provide their home phone number and which specifies clearly the purposes for
which it will be used – although bear in mind that even without an express
provision, the right to a home phone number could be implied anyway. Consent
may be covered in part by the standard Data Protection Act consent.

– Whether the request is proportionate. It would not be proportionate to
demand every phone number the employee has or to make the demand for a
non-business purpose.

– If the employee still refuses, consider what level of sanction would be
appropriate. Only where a home phone number is key to the job would dismissal
be appropriate – in most cases an employer should let it go or impose a lesser
sanction or merely counsel the employee.

Other points to note are:

– Care should be taken if employers publish employees’ home phone numbers
in, for example, a staff directory. They should have explicit consent to do
this and make it clear that staff are only to use numbers for specified
purposes (ie, not for asking someone out on a date).

– Even if an employer were found to be in breach of the HRA, unless they are
a public entity (eg, a government department; hospital trust) the employee is
unlikely to have direct rights against them under the HRA and they would have
to bring it as part of another claim.

So the moral here is, as with any issues in relation to personal data,
employers will be well advised to deal with this issue in the contract. But
even if they do not, a commonsense approach should minimise liability.

Catherine Taylor is a partner at law firm Olswang

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