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Privacy in the Workplace    

Privacy in the Workplace

The issue of privacy of employees in the workplace has become an important one in the last few years. Employees are more aware of their right to privacy, particularly due to the fact that the right of privacy is one of the general rights protected by the Human Rights Act 1998. That is because the Act incorporates Article 8 of the European Convention on Human Rights.

Flouting of employees’ rights due to lack of awareness could be costly for an employer, and may result in serious damage to its reputation and cause loss of business.

Possible claims by an employee when the right to privacy is breached include:

  • discrimination
  • harassment (direct or indirect) and defamation
  • breach of contract (e.g. the implied term of mutual trust and confidence)
  • constructive dismissal (where the employer’s breach is serious enough to justify the employee resigning)

One of the main reasons for the growth in the law relating to privacy at work has been IT systems and the internet. Many (usually office-based) employees are concerned about whether what they do on their employer’s computer system can legitimately be monitored by an employer. Can an employer read even personal and confidential emails sent during a lunch/rest period whilst at work?

The most straightforward answer would be that an employee would be wise to not assume that any activity on a work-based IT system is confidential. IT activity could be monitored if that monitoring is proportionate and justified. The employer could argue that it has the right to check that its IT systems are not being abused for unlawful/offensive purposes.

Monitoring can be part of that ‘checking’ process, and all modern IT systems allow the person in charge to, for instance, monitor which websites an employee has visited, through the use of ‘webprints’ or ‘cookies’. The relevant Employment Practices Code drawn up by the Information Commissioner's Office does specify that employees should be notified that monitoring may take place at work, so that employees are well aware of it.

This should be stated in the employment contract from the outset of employment. Of course, from the employer’s point of view, notifying employees properly will serve as a very useful deterrent to any employees who might have been inclined to do anything damaging from their work-based computer, such as accessing unlawful/offensive websites.

Of course, whether the employer discloses the likelihood of monitoring or not, he is not at liberty to make public any embarrassing information gathered from, for instance, an employee’s activities on websites whilst at work. There is still an underlying obligation of privacy/confidentiality in that sense.

Everything I have said above would apply in the same way to monitoring and checking of telephone calls, or the use of surveillance, by an employer.

The relevant determining legal phrases which establishes the issue of privacy at work one way or another is whether it was- ‘proportionate’ and whether the employee had ‘a reasonable expectation of privacy’ in all the circumstances.

This is always a matter of judgement, and we can advise you on what a court or tribunal may decide on your privacy issue, in the light of leading judgements and case precedents set by the higher courts. Each situation involves weighing up the facts. For instance, using CCTV surveillance or secret audio recording in the workplace may be justified in some situations by considerations of security, but outrageous in others, where privacy would be expected.

The Data Protection Act 1998, and the guidance of the Information Commissioner, are vital to privacy issues. They set out fundamental principles which should govern the handling and processing of ‘personal data’ relating to employees by employers. This is a technical area, but we can advise on specific situations based upon the concrete facts.