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Employee monitoring

A personal assistant was looking through a colleague’s e-mail account – standard practice when people were away or off sick at the consultancy where she worked. But instead of the client e-mail she was hunting for, she found an ‘unpleasant and defamatory’ message about herself. She complained – and was promptly sacked for accessing a confidential record. The dispute is one of hundreds of cases involving staff privacy that are waiting to be heard by employment tribunals. Employers are hoping not to join this queue face a mass of new, potentially conflicting, regulation.

The government last week gave a legal green light to snooping on staff e-mails and phone calls. Proposals to force companies to seek the consent of both the senders and recipients have been abandoned. Instead, rules coming into force on October 24 will allow employers ‘routine access” to messages to check whether they are business-related. The only important caveat is that companies must make ‘all reasonable efforts’ to inform staff and the outside recipients of the messages that they may be monitored.

‘They have effectively given in to all of the pressures from industry’, says James Davies, an employment partner at Lewis Silkin, the law firm. But this apparent

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victory for employers may prove a somewhat Pyrrhic one. A draft code on workplace surveillance being published this week by the Data Protection Commissioner, the privacy watchdog, places much tighter constraints on employers. Companies engaging in unreasonable or blanket snooping could face enforcement action from the Commissioner.

They also risk being taken to court. The unions have threatened to back an early challenge to surveillance by using the Human Rights Act, which enshrined the right to respect for privacy into UK law on October 2. This new legal right might appear to sit uneasily with the mass of surveillance techniques used by business. Insurers routinely employ private detectives to snoop on people they suspect of fraud, citing cases such as the man claiming chronic back pain who was videoed mending his roof.

Employers use similar techniques to catch staff on long-term sickness leave who are moonlighting as taxi drivers or window cleaners. New technology allows companies to keep tabs on their employees in Orwellian ways. Hidden cameras, smart-card identification badges that track where people are in a building and software that analyses duration and destination of telephone calls are only part of the armoury. Drugs testing of employees has spread from the US to Europe.

Genetic testing – used by 15 per cent of big American companies, according to a survey earlier this year – is expected to be next. But the question of which parts – if any – of this activity will be curtailed by the Human Rights Act appears an open one. The new right to privacy is not absolute. It can be overridden if the intrusion is necessary to, among other things, protect public safety or health, prevent disorder or crime, or protect ‘the rights and freedoms of others’. This gives a broad range of possible defences. But cases decided by the European Court of Human

Rights give little guidance on which defences will persuade the UK courts. The most prominent case concerned Alison Halford, a senior police officer who argued successfully that her right to privacy had been breached at work. But the Halford decision may have stemmed from the fact the police had secretly bugged a phone line they had installed for her use in a discrimination case she was fighting against them. Such a blatant intrusion of privacy is a long way from monitoring work calls with the knowledge and implied consent of employees.

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