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As reality TV show Big Brother, having completed its 7th series in the summer, and now about to run a celebrity version, the show (which is now run in over 70 countries worldwide), continues to be hugely popular here, we ask what impact does a “big brother society” have on the workplace?

Despite the attraction of the TV show, very few people want to be a part of the “big brother society” and are resistant to invasion of their privacy. This is a particularly emotive issue in the workplace. Employers have legitimate business interests to protect, whilst employees should have their privacy and autonomy respected.

Companies need to ensure that their systems are not being abused. The solution to this problem is for employers, workers and their unions to negotiate and implement sensible guidelines on good business practice and agree what level of surveillance or monitoring is acceptable.

Monitoring or surveillance at work is not a new issue, however with the advent of new technologies it has become more widespread. The following types of monitoring are regularly used:

• opening individual worker’s emails
• listening to voicemail messages
• recording activities by audio or CCTV equipment
• gathering information from point of sale terminals
• using software to collect information about workers’ use of IT systems
• examining a log of websites visited
• keeping a record of personal telephone calls
• tagging systems on vehicles
• performance monitoring, for example the number of telephone calls made.

What about my private life?

The Human Rights Act introduced in 2000, gave individuals a right to privacy and to a family life. However, it is clear that the Act has not prevented the monitoring of employees in the workplace and nor is it likely to.

When a senior police officer complained about her private telephone calls being tapped by her employer, the European Court of Human Rights held that she had “a reasonable expectation of privacy for such calls”. The significance of this is that if an employee does not have a reasonable expectation of privacy, then an employer may be free to monitor telephone calls subject to justification.

Covert surveillance is a clear intrusion into an employee’s private life which they would not expect and so one would believe it is a clear infringement of the right to a private life. However, the Courts have held that such intrusion, which can extend to surveillance at the employee’s private address, can be justified where an employer is seeking to protect its assets. The crux here is that the surveillance must be carried out with a view to detecting a crime.

The Courts will balance the right to a fair trial against that of the right to privacy. The former will usually prevail where the evidence from covert surveillance goes to the very heart of the case, eg. an employer’s insurance company hires an enquiry agent to investigate the legitimacy of a personal injury claim. The enquiry agent obtained access to the employee’s home posing as a market researcher and filmed the employee using a hidden camera. The evidence obtained proved the employee had virtually recovered from her injuries, despite her allegations of continuing significant disability. However, because of the way the evidence was obtained, it was not admitted by the Court.

It is necessary to ensure that you have in place a policy which is communicated to your employees and which makes it clear that monitoring in various forms will take place. That way the employee will not have an “expectation” of a private life at work, making reliance on the Human Rights Act much more difficult.

Under the Human Rights Act, the employee may only bring Court proceedings against a public body. In all other circumstances the employee will not be able to make a complaint directly under the Act. However, it is possible that an employee will be able to show that a breach of the right to a private life is also a clear breach of implied terms of trust and mutual confidence (in the employment contract) entitling the individual to resign and claim constructive unfair dismissal, eg. a secretary was subject to extensive monitoring and surveillance by her manager who suspected her of running her private life whilst at work, which extended to her email use and logging the length of her telephone calls and the number of calls received and made.

Those she had called were telephoned to check what the call was about and who they were. The secretary was dismissed for misconduct. The Tribunal found her dismissal unfair because the Company had no rules on private use of the phone, IT system and had no policy on surveillance.

You can’t read my emails!

Monitoring of staff usually takes the form of intercepting emails, recording telephone calls, examining web logs and the use of CCTV.

The Regulatory and Investigatory Powers Act 2000 prohibits employers from intercepting employee communications including the monitoring of telephone calls, emails and the use of internet facilities at work unless the sender and the recipient consent to the interception being made. Unlawful interception can lead to a criminal liability and a claim for damages from either the sender or recipient or both.

Consent may be achieved by a well drafted IT Policy covering email use (both internal and external) and internet use. However, there is a get out clause! The Government issued complementary regulations (“Interception of Communications”) to authorise interceptions without the individual’s consent which appear to constitute a legitimate business practise. These include:

1. identifying the existence of facts relevant to the business
2. ensuring quality standards
3. preventing crime
4. protecting the IT system from viruses
5. determining the relevant of communications to the business.

These regulations give much greater scope for monitoring as they clearly encompass monitoring for personnel and management issues such as training, quality and compliance.

If employees have made all reasonable efforts to inform every person who may use their system that interception of emails, telephone calls and internet interactions at work may take place, employers are also authorised to monitor or keep a record of calls on their system for the purposes of detecting unauthorised use and to establish the existence of facts relevant to the business – a very wide and extensive right.

The easiest way to avoid liability under this Act is to ensure that an IT Policy is in place which is disseminated to all staff and clearly outlines the boundaries for the use of telecommunications and the circumstances in which monitoring will take place.

So what about the Data Protection Act 1988 (DPA)?

The DPA regulates the manner in which businesses can obtain, hold and use personal information about workers. This will include data and information obtained through monitoring and surveillance.

A code supports the DPA which covers monitoring at work and this places some genuine restrictions on employee monitoring and outlining core principles that will usually be intrusive to monitor your workers and reaffirming that workers have legitimate expectations so they can keep their personal lives private and they are also entitled to a degree of privacy.

The code emphasises the need to adhere to the following principles:

• you should inform workers about monitoring (preferably in the form of a policy)
• all monitoring should be justified
• you should carry out adverse impact assessments (consider less intrusive methods)
• retain impact assessments as evidence should your monitoring methods be questioned
• any data obtained through monitoring should be processed in accordance with the DPA

A breach of the DPA entitles an employee to make a complaint to the Information Commissioner. However, many employees are unfamiliar with this route and the process can be slow. Compensation can be awarded for financial damage and distress but it is not possible to claim compensation for distress alone. This leads to a result that most complaints will lead to little or no compensation as more often than not invasions of privacy will lead to a non-economic loss.

However, a breach of the code may be used as evidence to support a claim for constructive unfair dismissal where an employee alleges that such intrusive monitoring has destroyed the relationship of mutual trust and confidence.

So what’s the answer?
Openness – consent - consultation – private permitted use or areas?

There is a common theme that runs through the legislation outlined and that is the requirement to be open with your employees through consultation and to communicate policies and procedures for monitoring to them. Employees should be asked to sign an acknowledgement that they have read, understood and agreed with the terms of the policy. The method of monitoring should be determined following impact assessments which will justify it as a proportionate measure to protect the interests of the business as opposed to the individuals’ right of privacy.

Policies should:-

• remind users to keep passwords secure
• warn users not to send out confidential information by email to inappropriate recipients
• warn users not to express themselves in ways that will be defamatory
• warn that emails may be checked for obscene, indecent or illegal remarks
• allow occasional personal use of email or the internet – outside normal working hours
• cover procedures to check for viruses or to alert other users
• set out email etiquette to avoid bullying or harassment claims.

If you have policies and procedures in place, review them to ensure that they are compliant with the legislation and remind employees about them. Where you do not have any policies or procedures in place, then now is the time to put this in order before it becomes too late. A recent survey found that the weekly cost to employers in the UK of workers accessing the Big Brother website reached £1.4 million. You have been warned!

Copyright 2006 - 2010 Taylors Solicitors

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