Western Morning News 19 June 2003

19/06/2003


For nearly twelve months, Follett Stock have been writing the 'Legal Brief' column in the Western Morning News, offering advice on a range of legal issues relevant to businesses.

The material contained in these articles is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.


Have you been watching Big Brother on the TV? No, nor have I. Utter drivel. It’s the brainless watching the brain dead. But don’t you think it’s interesting how Cameron is turning out to be the moral policeman, acting, if you like, as a bridge between the boys and the girls. Almost a “big brother” within Big Brother. Perhaps not.

I mention it because it illustrates how we have come to accept as normal the way in which we can spy on others and this applies to the workplace just as much as the self imposed prison set in Milton Keynes. Nowadays an employer has lots of information about his workforce and because it is often on computer it is easily accessible.

It will include the worker’s salary and probably his bank account number and possibly details about his health, his background and his previous employment held on his personnel file. There will be the details of the most recent appraisal and maybe previous disciplinary problems.

But the greatest impact of recent technology has been the ability of an employer to monitor his workforce. If he wants to, there are lots of ways in which he can do it. The most obvious way is by using CCTV cameras so he can actually see what is happening from moment to moment but he can also randomly open up an individual worker’s e-mails or listen to his or her voicemails. It is possible to install special software to check to see if particular people are sending or receiving inappropriate e-mails and he can check website logs to see if anyone has been downloading pornography. When you get your telephone bill nowadays you get yards of information about the calls made and he can check that to detect the use of premium rate lines. Outside the business he can obtain video evidence to prove that the worker who has been off work with a bad back is actually heaving cement blocks around building his patio and if he thinks the employee is in financial difficulties he can make checks using a credit agency.

That’s all very well in the Big Brother house where the contenders have signed up to all this and more but it is not acceptable for the rest of us or at least not without some restrictions. The Data Protection Act 1998 covers much of this and the Information Commissioner last week issued the third part of his Employment Practices Data Protection Code dealing with monitoring at work. There is also a supplementary guide and a shorter one for small businesses. If you want to monitor your workers, what do you have to do?

· Consider why you want to carry out monitoring. It might be to deal with a particular problem such as theft.

· Once you have decided the reason, satisfy yourself that the particular monitoring arrangement is justified by real benefits that will be delivered. Do not forget that your workers expect to keep their private lives private and they are entitled to a degree of privacy at work.

· Consider whether there are other alternatives or different methods of monitoring which would be better.

· Make sure all your workers are aware that they are being monitored and why. A notice on a notice board or an email will be enough. If you want to enforce particular rules and standards, make sure your workers know what they are.

· Only use the information for the original purpose and keep it secure.

· Be careful with e-mails that are clearly personal. Avoid opening them. Confine your monitoring to the message’s address or heading. If you are going to do this when the relevant workers are away, make sure they know this will happen.

· If you are using CCTV, only monitor the areas at risk, not the areas where the worker expects to be private.

· If you think you need information about a worker’s criminal convictions, only do so through a disclosure obtained via the Criminal Records Bureau.

· Secret monitoring will rarely be justified and only when there are grounds for suspecting criminal activity or equivalent malpractice and when notifying the individuals in advance would prejudice its prevention or detection.

Do not forget that failure by the employer to fulfil his responsibilities under the Data Protection Act can ultimately lead to him being prosecuted. And what would Cameron and John (the sci-fi nerd) and Ray and Tamsin (who I’m sure fancy each other) and Federico (though I have it on good authority that he will be voted out this week) have to say about that? Well, it might at least raise the level of the conversation in the Big Brother hovel for a few minutes.

Martin Follett is a founding Partner of Follett Stock and specialises in Employment Law - amongst other things!