Data Protection And Employment - Part 2

Author:Mr Philip Nolan
Profession:Mason Hayes & Curran
 
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Employers have a legitimate interest in preventing staff misconduct. Consequently, they generally wish to monitor the workplace activities of their employees.

However, employees do not lose their right to personal privacy when they walk through the office door. In Copland v United Kingdom (a 2007 case), the European Court of Human Rights found that an employee's right to respect for his or her private life and correspondence could be violated by an employer's monitoring of telephone calls, email correspondence and internet use.

This article considers how employers can deal with the specific challenges of CCTV, email/ internet monitoring and the use of private detectives.

Transparency

It is vital that any monitoring in the workplace is fair and transparent. In Copland, the European Court of Human Rights laid particular significance on the fact that the employee had been given no warning that her communications and internet usage were being monitored. It was this lack of transparency and knowledge that constituted an interference with her right to privacy.

This requirement for transparency is reflected in Section 2 of the Data Protection Acts 1988 and 2003 ('the DPAs'), which require among other things that personal data are obtained fairly for specified, explicit and legitimate purposes. The requirement is further underlined by Section 2D of the DPAs, which requires that a data subject is informed of the purposes of the processing and receives any other information necessary to make the processing substantively fair. The Copland case and the statutory provisions above drive home the same basic point: employers must inform employees about any monitoring. Such notification should generally be provided via clear policies.

Such policies should be written in plain English and should be provided to all new recruits, ideally with a copy of their contract of employment. Potential employees should be given an opportunity to review such policies, along with their proposed contract, prior to signing. Taking these steps will assist an employer in showing that the employee understood how their workplace activities could be monitored.

Basis for monitoring

It is not enough for employers to simply inform employees of the existence of workplace monitoring; employers must also be able to show that such monitoring can be justified under the DPAs.

Employers may, in the first instance, be tempted to assert that employees have consented to monitoring, either explicitly via signed policies, or implicitly by choosing to work...

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