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Technology and the monitoring of employees
Today’s technology means that employers can very easily monitor the activities of their employees, and consequently the workplace is increasingly becoming a source of conflict between an employee’s right to privacy and the employer’s need to protect their business.
The legislation which must be considered in relation to electronic monitoring can be found in:
- The Human Rights Act 1998 (which incorporates the European Convention on Human Rights into UK law);
- The Data Protection Act 1998;
- The Regulation of Investigatory Powers Act 2000; and
- The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000.
The Human Rights Act 1998 (the “HRA”)
Although only public authorities are expressly subject to the HRA, it is relevant to all employers as courts and tribunals must interpret all legislation consistently with the HRA as far as possible. Article, 8, which gives everyone the right to respect for their private and family life, is therefore relevant to cases of unfair dismissal as a result of information obtained through covert monitoring. It is also a relevant factor in the interpretation of other legislation relating to monitoring outlined below.
While not an absolute right, the courts have held that workers do have the right to some degree of privacy in the workplace. As such, employers should consider the proportionality of any monitoring carried out, and whether it could be justified if challenged under the HRA.
The Data Protection Act 1998 (“DPA”)
As the monitoring of employees’ use of e-mail and the internet involves the processing of personal data, the provisions of the DPA must also be considered.
The provisions which are most relevant to electronic monitoring include the requirements for fair and lawful processing, for data to be adequate, relevant and not excessive and for data to be subject to adequate measures to protect against unauthorised processing and accidental loss, destruction or damage.
The Employment Practices Data Protection Code provides some guidance on how the monitoring of electronic communications can be carried out in accordance with these principles. While not binding, this guidance would be taken into account in the consideration of enforcement action so employers will need a good reason to depart from it. The guidance sets out the following statements of principle:
- Employees’ private lives usually extend into the workplace, and employees have an expectation of privacy, even where they have been informed monitoring may take place.
- Any monitoring must be proportionate to be justified. This involves a consideration of the reason for monitoring, whether that reason justifies the intrusion into an employee’s private life and whether the monitoring is proportionate to meet that need.
- An impact assessment should be carried out to consider if the monitoring is proportionate.
- Employees should be given information about the monitoring that is to take place. This should include the circumstances in which monitoring may take place, the nature of the monitoring, how the information will be used and the safeguards in place to protect the data obtained.
- Staff with access to the information obtained should be limited and receive appropriate training.
While the DPA has historically been regarded as rather weak, from April 2010 the maximum fines that the information commission could levy have been increased to £500,000 and it is expected that fines will be introduced over the next few years, with the current proposals considering up to 2% of an organisation’s annual worldwide turnover. Additionally, a breach of the requirements of the DPA could also be seen as a breach of the implied term of trust and confidence that is owed to an employee, potentially resulting in a successful claim for constructive dismissal.
The Regulation of Investigatory Powers Act 2000 (“RIPA 2000”)
The provisions of RIPA 2000 are also relevant to any monitoring which involves the interception of communications. This includes the recording of telephone conversations and the use of systems which block emails and make some of the content available to another person, although it doesn’t extend to the opening of emails which have already been opened by the recipient.
Monitoring covered by RIPA 2000 will be permitted if the interceptor has reasonable grounds for believing that both sender and recipient have consented to the interception. Obtaining an employee’s consent to possible interception would satisfy this in respect of internal e-mails and telephone calls and often recorded messages are played to customers calling into a business informing them that a call may be recorded to satisfy this requirement for consent. External e-mails are a little more problematic however, as it can be difficult to show that the external sender of the email has consented. In these cases, monitoring still may be permitted however under the provisions of The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, which are outlined below.
Monitoring which is not permitted under RIPA 2000 is a criminal offence and can also lead to claims for damages from both the sender and recipient of a communication.
The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000
These regulations set out a number of circumstances where it will be lawful to intercept communications without consent. These circumstances include to monitor compliance with practices or procedures relevant to the business, to assess standards which ought to be achieved by workers, to prevent or detect crime, to investigate or detect the unauthorised use of the system and/or to ensure the effective operation of the system.
Businesses are also permitted to monitor, but not record without consent, for the purposes of determining whether the communications are relevant to the business and monitoring communications to a confidential anonymous counselling or support helpline.
To fall within these regulations, employers must also make all reasonable efforts to inform every person who may use the telecommunications system that interception may take place. Specific consent is not required however, and current guidance from the Information Commissioner's Office suggests that while workers must be informed that interception may take place, outside senders of e-mails do not need to be so informed.
Covert monitoring and admissibility of evidence in Employment Tribunal proceedings
In some circumstances, an employer may want to monitor an employee covertly, usually in the course of an investigation into serious misconduct or suspected criminal activity.
As we have seen above, a key step in carrying out legitimate monitoring of employees is to inform employees of the monitoring activities taking place. Failure to do this risks breaching not only the provisions of the DPA and other legislation, including the right to privacy, but may also lead to a breach of the implied term of trust and confidence, which could give rise to a successful constructive dismissal claim.
Where monitoring needs to be carried out covertly, it is obviously not possible to inform the employee of this, as this would defeat the purpose of the covert monitoring. So to what extent is covert monitoring permissible, and to what extent will the resulting evidence be admissible in future Employment Tribunal proceedings?
When is covert monitoring permissible?
Guidance on the DPA states that covert monitoring should only be used in exceptional circumstances, should be authorised by senior management and only if there are grounds for suspecting criminal activity or equivalent malpractice and notifying individuals would prejudice its prevention or detection. Covert monitoring should not be used in areas which workers would genuinely and reasonably expect to be private, such as toilets or private offices unless there is a suspicion of serious crime and there is an intention to call the police. Any information obtained through covert monitoring should not be used for other purposes.
Will the evidence be admissible?
Employment Tribunals are not strictly bound by the rules of evidence that are applicable in a court of law. Employment Tribunals have their own Rules of Procedure, which are generally more relaxed than those of the civil courts and there are no specific provisions governing the admissibility of covertly obtained evidence. As a result, Employment Tribunals have a wide discretion to consider whether to admit evidence in each case.
There is very little case law and guidance in the Employment context on the admissibility of covertly obtained evidence. However, in considering whether to admit covertly obtained evidence, a Tribunal will have to consider both the right to a fair trial and the right to privacy under the HRA and consider whether the proceedings as a whole, including the way in which evidence was obtained, was fair.
In a recent case, McGowan v Scottish Water  IRLR 167, an employer hired private investigators to carry out covert surveillance on an employee who was suspected of falsifying his timesheets. The employee was dismissed as a result. He claimed unfair dismissal, based on breach of the right to respect for private life. His complaint, and subsequent appeal, were both unsuccessful. Although the right to private life was relevant to the issue of covert surveillance, in this case the surveillance was in the circumstances found to have been proportionate and was therefore accepted as evidence.
However, in a contrasting decision in Mills v Mid Sussex District Council (ET, unreported), an employer hired a private detective to observe an employee for a period of 4 months. The surveillance took place outside the employee’s home as the employee was suspected of spending time at home when he should have been working. In this case, the surveillance was found to be disproportionate, particularly as the employer had not considered other less intrusive forms of enquiry. As a result, there had been a breach of his right to privacy and Mr Mills was found to have been unfairly dismissed.
In view of the above cases we can see that the concept of proportionality is a key factor in assessing the reasonableness or otherwise of covert monitoring and evidence which has been obtained in breach of an employee’s right to privacy is likely to go some way towards a finding of unfair dismissal.
What about evidence obtained covertly by an employee? In the case of Chairman and Governors of Amwell View School v Dogherty UKEAT/0243/06, an employee who covertly recorded her own disciplinary meeting was allowed to admit this evidence but only in respect of the part of the meeting where she was present. A recording of private deliberations by the panel was found not to be admissible on public policy grounds. This decision has been subsequently followed in a further case.
Guidance for employers
The provision of information to employees
In view of the importance of providing information to employees concerning the type of monitoring activity that may be carried out and the purposes for which it may be carried out, it is important to have an appropriate electronic communications policy in place.
This policy can also be used to set appropriate standards for the use of email, internet and other technology and to address other risks that technology can pose to the employer, for example in relation to confidentiality and IP issues, inadvertently creating contractual liability and the risk of discrimination and harassment claims through inappropriate use.
It is not enough to simply have a policy however. The policy should be supplied to employees at the start of their employment, employees should be asked to indicate they have read and accept the policy and any changes should be communicated to employees. In applying the policy, employees should also be treated consistently to avoid claims for unfair dismissal and discrimination.
Consider whether monitoring is proportionate
In addition to the provision of information, another key theme we see throughout the above legislation is the concept of proportionality. Employers should follow the Information Commissioner’s guidance and carry out impact assessments in relation to the monitoring activities it carries out by considering what the purpose of the monitoring is, whether that purpose justifies the intrusion into an employee’s private life and whether the monitoring proposed is proportionate to meet that need.