Employers have the technology to monitor staff. The challenge is to use it for competitive advantage without breaking the law, says Damian Kelly
The publicity surrounding the recent introduction of privacy laws has forced all of us to ponder some difficult questions. Privacy is regarded by many as a fundamental and sacrosanct human right. Is that status threatened? Should we be concerned that employees’ privacy rights are being steadily eroded by the over-zealous attentions of UK plc? Or are employers unfairly restricted in the surveillance and monitoring of staff which they can lawfully undertake?
First, let us put the current privacy debate in context. The right to privacy is established in international conventions and is specifically protected in the constitutions of other countries. Historically, the UK legal framework has fallen short of providing employees with proper protection against inappropriate invasions into their privacy.
But the introduction of legislation on data protection and interception of communications, as well as the much-vaunted Human Rights Act, has beefed up the level of protection available to employees.
The thrust of the new laws is to prohibit invasions into employees’ privacy, except in limited circumstances. For example, monitoring is acceptable where employees’ consent is given or where it protects the rights and freedoms of others.
Opinion is, of course, divided on whether the legal framework goes too far in restricting employers’ rights to manage their workforces, or not far enough. In a democracy, such divergence of opinion is inevitable and healthy.
Why though is this debate so important now? Technology holds the key. UK privacy laws are being introduced at a time when employers have access to an unprecedented range of sophis- ticated surveillance technology. This ranges from location tracking and audio bugging to keyboard monitoring and software which identifies inappropriate use of e-mail and the Internet.
The availability of this technology is not coincidental. The IT revolution has already changed fundamentally the way in which most of us work. Consequently, employers have a greater need than ever to monitor workplace activity in a responsible way to protect both employees and their own legitimate business interests.
Misuse and abuse of the Internet and the sending of inappropriate e-mails is becoming an increasingly difficult problem for employers. Misuse leads not only to reduction in productivity but can render employers liable to a number of different claims, including potentially expensive discrimination actions.
Employers can use electronic and physical surveillance to detect and deter various problems, including harassment, stress and industrial espionage.
History tells us that the tide of progress cannot be halted. Surveillance technology is there and employers will use it. Responsible employers will recognise that with rights go responsibilities. Monitoring and surveillance should be carried out only within the confines of the law and without compromising the good will of employees. The real challenge will be for organisations to turn responsible workplace surveillance into a model of best practice and an opportunity to gain genuine competitive advantage.
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Damian Kelly is a solicitor at Eversheds Business Lawyers in Europe.
You can explore the privacy issue and how you as a senior HR professional can make a significant strategic impact at the Eversheds Employers Convention 2001. This two-day event will be held on 21-23 March at the Grand Hotel, Brighton. where Jeremy Paxman will be hosting the debate. To book call Laura McCrainor on 0121-232 1543 or on-line at www.employersconvention.com
