Electronic Communications

What are the legal forms of monitoring in the workplace?

Essentially, monitoring in the workplace must be for some purpose connected with the function of the company. It can be monitoring to prevent theft, it can be monitoring for purposes of customer relations, or it can be monitoring for purposes of education and training. It must be done in most circumstances with the knowledge and consent of the employees. The main exception to that would be in some circumstances such as monitoring to detect theft. In most countries there is negotiation with the relevant trade union, or in other countries there are works councils to get their agreement before a form of monitoring is introduced. However, it should not interfere with personal privacy more than is necessary for a reasonable purpose.

What are the illegal types of workplace monitoring?

Illegal types of monitoring would be monitoring that is not necessary for any commercial purpose. It is simply monitoring the employees, for example, emailing in the washroom, probably would not be for any legitimate purpose. Monitoring without any notice being given to the employees; monitoring without consent of the employees being obtained in many circumstances. Monitoring of telephone communications and internet communications using workplace facilities is usually permitted if there is notice to the employees given. That is, it is monitoring to ensure or to determine whether workplace facilities are being used for private purposes, or workplace facilities are being used for private purposes excessively. It is a matter of policy as much as law that is the employer may allow private phone calls for certain purposes and if this is allowed then the employer should not be monitoring them at least should not be monitoring the content. There is a distinction here between interception of the communications, that is monitoring the content of the conversation or the content of the email, and what is called traffic data, that is monitoring the say, telephone communications made, the number called, and the duration of the call, for example. Another form of traffic data monitoring which I think is not used very much in this country yet is the use of location monitoring of mobile phones. Because what is still not very widely known is that so long as you have your mobile phone on, you are giving a continuous record of your physical location. Because the technology of cell phones is that you are passed from a cell which operates to a particular mast, to another cell. So your location can be determined usually with more precision in a city than in the country because the masts are closer together. If your phone has a global positioning facility, which many do, then that simplifies another way in which your location can be monitored. Now, can this monitoring be used by the employer? It isn't very much so far as I know in this country, as yet. It probably could be used legitimately if it was for a commercial purpose. For example, if a company has a fleet of travelling salesmen, if it gets their consent, and gives notice to them, then it might be legitimate for the company to monitor the location of the salesmen according to their mobile phones. So that form of monitoring is still not used much in this country. I predict that it is likely to be used and the questions will be the now fairly standard ones of whether it is for a reasonable purpose, whether notice is given, and whether the consent of the employees is obtained.

Is my employer allowed to monitor me in secret?

Employee monitoring, as I said before, requires that it be for a legitimate purpose and that notice to the employees be given. Usually, consent is to be obtained, although the consent can be of the entire workforce rather than on an individual basis. There may be rare exceptions in which there is investigation into theft that requires a form of cover monitoring, but that's the exception rather than the rule.

What should I do if I feel that my rights have been infringed by workplace monitoring?

You probably should go to your employer and if that is not satisfactory, go to the information commissioners office and complain. There has been a recent case in the European Court of Human Rights in which a woman, who was employed by a University, whose e-mail and telephone telecommunications were being monitored by her employer without her knowledge. The employee then found out about it ,and went straight to the European Court of Human Rights and was successful. It was an interesting case because normally you are required to exhaust your remedies with the domestic courts before you go to Strasbourg. In this case, she was not required to because the court determined that she really did not have a remedy, either under the general privacy rule in the UK or under the then existing Data of Protection Act. I have my doubts about that, but court ruled in her favor and she was successful in compensation. In that case, the employee's telephone calls, internet usage and e-mails were being monitored by an employer who was suspicious that the employee was using university facilities excessively for private purposes. There is a strong hint in the case that it was actually a case of personal malice.