. . .and, it seems, he may have every right to do so. . .
If only it was that simple. In fact, monitoring in the workplace (for example, CCTV and emails) raises a host of legal issues under:
- the Data Protection Act 1998
- the Code of Practice issued by the Information Commission’s Office (ICO)
- the Human Rights Act 1998
- the Regulation of Investigatory Powers Act 2000, and
- the Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000.
Although this may seem counter-intuitive, on the authority of no lesser person than the Information Commissioner, it is not strictly necessary for an employer to obtain employees’ express consent – for example, to intercept or monitor emails. Instead, the well-advised employer will adopt a strategy of informing employees that monitoring is to take place – perhaps via a general policy statement issued to staff.
That said, the same well-advised employer will previously have prepared an impact statement to demonstrate that careful thought has been given to methods of dealing with the relevant ‘mischief’ without resorting to monitoring. However, even where a proper and considered case for monitoring has been made out, an employer must still be realistic about how a general policy statement will be perceived and received. If, for example, an employer proposed that CCTV monitoring might take place anywhere within a building, that employer should not be surprised if employees objected that they had a legitimate expectation of privacy in certain areas – for example, toilets.
There might be many reasons why an employer might wish to monitor employees – or indeed they feel that there is an obligation to do so. Common reasons include:
- preventing inappropriate behaviour by employees, such as the harassment of colleagues.
- monitoring quality or performance or perhaps assisting in training.
- security (the avoidance of theft).
- commercial confidentiality (for example, protecting secret processes or technology).
- competition issues (for example, making it difficult for a departing employee to take customers away).
Monitoring can take many forms including:
- vehicle telematics (i.e. tracking)
- emails (including the monitoring of keyboard strokes and web access)
- recording telephone calls
- personal searches (to address theft and drug misuse)
- workplace security (perhaps via fingerprint recognition, iris scanning, voice recognition and so on).
As we have described, there are a number of different legislative obstacles to be negotiated. Perhaps the most topical (if only because the Home Secretary recently proposed an abandonment of our adherence to it) is the European Convention on Human Rights (ECHR), to which the Human Rights Act 1998 Act gives effect. Article 8 of the ECHR assures, amongst other things, the right to respect for private and family life.
It was that Article 8 right which was the subject of a recent Employment Appeal Tribunal (EAT) Judgment in the case of Garamukanwa v Solent NHS Trust. Mr G worked for the Trust as a clinical manager. He became involved in a personal relationship with a colleague, Ms M. Mr G, in turn, formed the view that Ms M had begun a relationship with another female employee.
The Trust, and Trust employees, began to receive anonymous emails from fictitious email addresses. Ms M, and the Trust, suspected that Mr G was the source of the emails. As a result of an investigation, the Trust concluded that there were items on Mr G’s smart phone which firmly implicated him in the anonymous emails. Mr G was dismissed for gross misconduct. His claim before the Employment Tribunal (ET) was unsuccessful.
Before the ET, Mr G’s case was that the Trust’s examination of information on his smart phone was breach of Article 8. That argument found little favour with the ET which decided that Article 8 did not apply as the emails were work-related.
Mr G appealed. The EAT agreed with the conclusion reached by the ET. The EAT reaffirmed that where workplace monitoring and Article 8 are at issue the first and fundamental question to ask is whether the circumstances leading to the dismissal genuinely fall within Article 8. If they do not, the matter ends there.
The EAT said that Article 8 potentially extended to work emails – for example, sent where there was a reasonable expectation of privacy. In this case, however, the emails were work-related and were sent to the work addresses of the recipients. In the circumstances, the ET had been correct is disregarding Article 8 because the way in which Mr G had framed and sent his emails pointed to his having no reasonable expectation of privacy.