There are any number of good reasons why you might want to monitor your employees' phone calls at work. For instance, to ensure quality of service or to train staff. Likewise e-mail communications - you may need to open someone's e-mail to check for damaging viruses or offensive material.
Although you may think you have the automatic right to monitor your employees' communications, however, the reality is that you need to approach the whole issue of privacy at work with caution.
Human Rights Act 1998
Article 8 of the Human Rights Act provides a general right to privacy within the office, although if you inform your employees that you intend to monitor their telephone, e-mail and other communications, then you can override that right. That is, as long as the monitoring is for a specific (and defined) purpose and is proportionate to what you are trying to achieve.
You may also be able to justify the use of CCTV to monitor your employees at work on the basis that it is necessary to protect their health (for example, on an assembly line), or to protect the rights of others.
In McGowan v Scottish Water, the Employment Appeal Tribunal said that Mr McGowan's human rights had not been breached by the company when it used covert surveillance of his home to establish whether he had been falsifying his timesheets because it was to prevent criminal activity and/or injury to the public.
If you interfere with your employees' e-mails, you may be in breach of the right to respect for correspondence under Article 8, unless you can justify it on the basis that it was necessary to protect the rights of others. For instance, to stop employees wasting time at work, or to ensure that they were not sending offensive e-mails which might amount to harassment.
The right to respect for private life also entails a person's right to keep personal information to themselves. Clearly you are entitled to keep personal data for the purpose of your records, but you should try to avoid asking intrusive questions of your staff.
Not surprisingly, you would be interfering with your employee's right to respect for private life if you disclose personal information about them to third parties without their consent, unless you have prior authority.
Regulation of Investigatory Powers Act 2000
This Act says that you cannot intercept the transmission of communications, unless:
- you have the authority to do so
- both parties agree
- or it comes within certain defined settings set out in the Telecommunications (Lawful Business Practice) (Interception of Communication) Regulations 2000
These regulations allow you to intercept communications between two parties without their consent in the following circumstances:
- If you want to keep a record of facts that are relevant to the business, such as where there is a dispute over something that has been agreed on the phone
- If you need to comply with certain regulatory practices or procedures relevant to your business
- If you need to keep certain standards for quality control or staff training
- If you need to prevent or detect crime
- If you need to keep an eye on the unauthorised use of your communications systems
- If you need to ensure the effective operation of the system to monitor for viruses or other threats
You can also monitor (but not record) communications in the following instances:
- If you need to find out whether the call or e-mail is "relevant to your business"
- If you run a confidential anonymous counselling or support helpline - perhaps to support or protect the staff
It's not entirely clear what is meant by something that is "relevant to your business", but it is likely to include private communications that breach company policy. For instance, if someone was giving away your trade secrets or downloading porn onto your system then you would be entitled to monitor that person. Otherwise, you should not intercept strictly private calls or messages (unless, presumably, it is against company rules to make them).
You should, however, let your employees know that their telephone calls and e-mails may be monitored, as well as external telephone callers and senders of e-mails.
Data Protection Act 1998
The Data Protection Act (DPA) regulates when and how you can process information relating to employees and also how they can get access to the information you are keeping about them.
In a nutshell, the principles of the Act state that data you keep must be processed fairly and lawfully; they should be relevant and not excessive in relation to the purpose for which they are kept; they should be accurate and up to date; and they must not be kept longer than is necessary.
At the core of the Act is the concept of "personal data" which means information from which a living person can be identified and which affects their privacy in the sense that it is biographical in nature. This applies to a very wide range of personal information that you hold on employees in electronic format.
Manual files are also covered if you use names of individuals as file names but not information that is processed manually before it is stored or recorded on a computer.
The DPA also introduced special rules on the processing of "sensitive data" which includes information about a person's:
- racial or ethnic origins
- political opinions
- religious or other beliefs
- trade union membership
- health or sexual life
You can only process this data in a number of defined situations. For instance, if the person to whom the information relates gives their consent; if it is required by law; for medical purposes; or for the purpose of equal opportunities or ethnic monitoring
Under the Act every organisation that processes personal information must give the Information Commissioner a few details about it. The Commissioner then makes an entry in their register which is available to the public. Notification costs £35 each year and it is a criminal offence not to register.
In any event, the RIPA and DPA require employers to provide information to employees concerning monitoring activities and this is best achieved through an electronic communications policy issued and signed by all staff. In addition, a separate data protection policy should be issued, actively communicated to staff and regularly monitored in practice.
[Back to contents
]
The aim of the 1998 Working Time Regulations (WTR) is to protect workers' health and safety and, as such, provides entitlement to rest breaks. In The Corps Of Commissionaires Management Ltd v Hughes, the Employment Appeal Tribunal (EAT) said that the reference to "a rest break" after six hours was an entitlement to one break only irrespective of the number of hours worked over and above that.
What happened?
Mr Hughes started work as a security guard on 12 September 1994. On 23 June 2006 he lodged a grievance claiming that he was entitled to rest breaks and compensatory rest periods under the WTR. The company told him in October that his grievance had not been successful and he lodged a tribunal claim the following June.
Regulation 12 states that "where a worker's daily working time is more than six hours he is entitled to a rest break of not less than 20 minutes." Regulation 21 states that workers "engaged in security and surveillance activities requiring a permanent presence" are not covered by these provisions. Instead, they are entitled to "an equivalent period of compensatory rest" and in "exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest" employers must provide workers with "such protection as may be appropriate in order to safeguard the worker's health and safety".
The tribunal said Mr Hughes was entitled to a 20-minute rest break every six hours, and made a declaration that he should, whenever possible, be allowed to take an equivalent period of paid compensatory rest during his working time.
The EAT decided that:
- The reference to "a rest break" in regulation 12 meant that the entitlement was to one break, and was only triggered when a worker did more than six hours work. Mr Hughes was not, therefore, entitled to two breaks if he worked for 12 hours
- Although the company required the "permanent presence" of a security guard this did not mean it had to be Mr Hughes. Someone else could carry out those functions while Mr Hughes was taking his compensatory rest break.
- It was not enough to say that he could rest between shifts as this was what he was entitled to in any event, and it did not "compensate" him for the loss of the rest period. To do so would thwart the purpose of the regulations, if groups of workers such as security guards were excluded from any form of compensatory rest. Furthermore, it was not appropriate to conclude that there were no steps which could be taken to protect Mr Hughes' health and safety.
[Back to contents
]
It is indirectly discriminatory for employers to apply a criterion which seems to apply equally to everyone but which, in reality, puts people of a certain age group at a disadvantage. In Chief Constable of West Yorkshire Police v Homer, the Employment Appeal Tribunal (EAT) said that tribunals must be careful to distinguish between age discrimination and the inevitable consequences of ageing.
What happened?
After 30 years in the police force, Mr Homer started work as a legal advisor for the West Yorkshire Police in October 1995. In 2004, a number of changes were made to the job profile, including the requirement to have a law degree (or at least to be in the process of studying for one) for new staff. Mr Homer was asked if he would like to start a degree course, but he refused partly because he would not be able to complete it by his retirement date at age 65.
Following an external assessment of the role in 2005 which involved the introduction of a grading system, Mr Homer applied to be re-graded to the highest level (the third threshold). However, because he did not have a law degree he could not satisfy all the criteria for this threshold which was the highest paid. He brought a claim of age discrimination on the basis that he could not achieve the necessary criterion for the highest pay threshold before reaching the retirement age of 65.
And the tribunal agreed with him. It said that claimants in the 60-65 age group were disadvantaged by the requirement to complete a degree course as they could not do so before age 65. The force could not justify it because although the aim of recruiting and retaining high calibre staff was a legitimate one, imposing the criterion on all staff was not a proportionate means of achieving it.
The EAT upheld the force's appeal. It decided that people in the 60 to 65 age group did not suffer any particular disadvantage as the requirement to have a law degree applied to everyone. Nor did it think it was any more difficult for older rather than younger people to obtain the qualification.
It concluded that the financial disadvantage that Mr Homer suffered was the result of "the inevitable consequence of age", not of age discrimination. It reasoned that "the shorter the remaining working life the less will be earned by way of future earnings. It seems to us that the claimant's case would require more favourable treatment for older workers to mitigate the fact that as they get older so their working lifespan decreases and the future value of benefits conferred by the employer is reduced".
[Back to contents
]
The Employment Act 2008, which received Royal Assent recently, will repeal the 2004 statutory dispute resolution procedures. It is likely to become effective as of April 2009.
The statutory dispute resolution procedures will be replaced by a new non-regulatory system. This will include a package of measures to encourage early/informal resolution of employment disputes possibly with increased support for the involvement of Acas, the government's conciliation service.
The new Act also aims to clarify and strengthen the enforcement framework for the National Minimum Wage and strengthen employment agency standards to address some of the concerns about vulnerable workers.
Finally, it makes changes to the law to comply with the European Court of Human Rights judgement in ASLEF v UK. This requires clearer rights for trade unions to determine their membership, after domestic courts held that trade unions could not lawfully expel British National Party activists.
For more information, go to:
OPSI - Employment Act 2008
[Back to contents
]
