Can my company monitor my telephone and email use?
There are several pieces of legislation that may be relevant if you think your workplace communications are being intercepted by your employer. This is a complex area of law and while every attempt has been made to simplify the issues, if you are uncertain of your position you should seek further advice from your Union or from a solicitor specialising in employment law.
The Regulation of Investigatory Powers Act 2000
An employer can intercept communication if either:
a) both parties to the communication have consented, or the employer has reasonable grounds for believing they have consented
or
b) the interception takes place in the course of the carrying on of the system controller's business under the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000.
Regulation 3 authorises interception of communications for the carrying on of the employers business. Such monitoring must be for one of the specified purposes listed under Regulation 3(1). This interception is only lawful if all reasonable efforts have been made by the employer to inform everyone that uses the telecommunications system that their communications may be intercepted (Regulation 3(2)).
If non-business related emails and telephone calls take place on the same telecommunications systems as business related communications, they may be intercepted by an employer who is intercepting communications in order to legitimately monitor those relevant to the business.
OFTEL has produced guidance for companies who record telephone conversations for business purposes. This guidance focuses on the reasonable expectation of privacy that employees are entitled to at the workplace under Article 8 - Right to Respect for Privacy and Family Life. It is no longer sufficient merely to warn workers that their telephone conversations at work may be recorded or monitored in order to remove their expectation of privacy as it is unreasonable to assume that workers will never make or receive calls touching on personal or intimate matters.
The Human Rights Act 1998
Article 8 of the Human Rights Act 1998 is the Right to Respect for Privacy and Family Life. It should be noted that the Act only applies to actions involving 'public authorities' so an individual cannot bring a privacy action against a private sector employer. However, under the HRA, courts and tribunals are considered to be public authorities so it is arguable that employment tribunals must consider privacy issues when dealing with an employment law matter.
In Copland v. United Kingdom the Court considered that the collection and storage of personal information relating to the applicant through her use of the telephone, e-mail and internet interfered with her right to respect for her private life and correspondence. While the Court accepted that it might sometimes have been legitimate for an employer to monitor and control an employee’s use of telephone and internet, in the present case it was not required to determine whether that interference was ȁc;necessary in a democratic societyȁd;. The Court therefore held that there had been a violation of Article 8.
Data Protection Act 1998
The Information Commissioner has set down standards in respect of telephone and email monitoring in the Employment Practices Code. In line with the Regulations, the Code requires employers to establish a specific business purpose for monitoring, and make all affected staff aware of its operation.
However, the Code goes a step further, and requires the employer to assess the impact on the privacy, autonomy and legitimate rights of staff. Any adverse impact must be in proportion to the benefit to the business, and must not interfere unnecessarily with employees' privacy and autonomy.
It is suggested in the Code that consent may not always be sufficient to make processing lawful. Processing which breaches other legal provisions, for example the HRA, will also breach the first data protection principle, that data be processed fairly and lawfully.
Summary
If you think there is excessive monitoring taking place you should confirm with your employers that they are aware of the Telecommunication Regulations and the Information Commissioners code of practice. Frequently disputes can be settled by compromise, for example providing separate telephones to employees for private calls. As with most employment disputes, it is far better to resolve the situation than risk tribunal proceedings, so discuss your concerns, through your Union if necessary, before considering legal action.
The Regulation of Investigatory Powers Act 2000
An employer can intercept communication if either:
a) both parties to the communication have consented, or the employer has reasonable grounds for believing they have consented
or
b) the interception takes place in the course of the carrying on of the system controller's business under the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000.
Regulation 3 authorises interception of communications for the carrying on of the employers business. Such monitoring must be for one of the specified purposes listed under Regulation 3(1). This interception is only lawful if all reasonable efforts have been made by the employer to inform everyone that uses the telecommunications system that their communications may be intercepted (Regulation 3(2)).
If non-business related emails and telephone calls take place on the same telecommunications systems as business related communications, they may be intercepted by an employer who is intercepting communications in order to legitimately monitor those relevant to the business.
OFTEL has produced guidance for companies who record telephone conversations for business purposes. This guidance focuses on the reasonable expectation of privacy that employees are entitled to at the workplace under Article 8 - Right to Respect for Privacy and Family Life. It is no longer sufficient merely to warn workers that their telephone conversations at work may be recorded or monitored in order to remove their expectation of privacy as it is unreasonable to assume that workers will never make or receive calls touching on personal or intimate matters.
The Human Rights Act 1998
Article 8 of the Human Rights Act 1998 is the Right to Respect for Privacy and Family Life. It should be noted that the Act only applies to actions involving 'public authorities' so an individual cannot bring a privacy action against a private sector employer. However, under the HRA, courts and tribunals are considered to be public authorities so it is arguable that employment tribunals must consider privacy issues when dealing with an employment law matter.
In Copland v. United Kingdom the Court considered that the collection and storage of personal information relating to the applicant through her use of the telephone, e-mail and internet interfered with her right to respect for her private life and correspondence. While the Court accepted that it might sometimes have been legitimate for an employer to monitor and control an employee’s use of telephone and internet, in the present case it was not required to determine whether that interference was ȁc;necessary in a democratic societyȁd;. The Court therefore held that there had been a violation of Article 8.
Data Protection Act 1998
The Information Commissioner has set down standards in respect of telephone and email monitoring in the Employment Practices Code. In line with the Regulations, the Code requires employers to establish a specific business purpose for monitoring, and make all affected staff aware of its operation.
However, the Code goes a step further, and requires the employer to assess the impact on the privacy, autonomy and legitimate rights of staff. Any adverse impact must be in proportion to the benefit to the business, and must not interfere unnecessarily with employees' privacy and autonomy.
It is suggested in the Code that consent may not always be sufficient to make processing lawful. Processing which breaches other legal provisions, for example the HRA, will also breach the first data protection principle, that data be processed fairly and lawfully.
Summary
If you think there is excessive monitoring taking place you should confirm with your employers that they are aware of the Telecommunication Regulations and the Information Commissioners code of practice. Frequently disputes can be settled by compromise, for example providing separate telephones to employees for private calls. As with most employment disputes, it is far better to resolve the situation than risk tribunal proceedings, so discuss your concerns, through your Union if necessary, before considering legal action.
