Keeping in touch
In this article, Victoria Phillips, head of Thompsons’ Employment Rights Unit in London, looks at what the law says and recommends that trade unions draw up detailed policies to deal with monitoring.
Can an employer search their employee?
For once, the law is quite clear. An employer has no right to subject an employee to a physical search, whatever the circumstances, without their consent. If they are searched against their will, even if they do not suffer any personal injury, the employer is guilty of assault and they can sue for damages.
In reality, however, if an employee refuses to be searched and their employer cannot force them, then their suspicions are likely to be increased and they are likely to do one of two things:
- use the employee’s refusal as evidence against them in a disciplinary hearing
call the police, if the matter is sufficiently serious, to resolve the matter.
If an employee exercises the right to refuse to be searched and their employer uses the refusal to instigate disciplinary proceedings, they can resign and claim constructive dismissal. But this can be a very risky approach as the employee may not succeed in their claim and they would, by then, have lost their job.
What if the employer has the right to search their employee?
Even if the employer has the contractual right to subject their employees to a physical search, then it must be carried out in a reasonable way. For instance, it should be done in privacy by someone of the same sex as the individual.
There should also be limits to which the employer can go – even if there is a contractual right to search, this does not mean that they can carry out an intimate strip search.
Can an employer monitor their employees?
The Data Protection Act 1998 does not prevent monitoring, but it places responsibilities on employers to process personal data that they hold in a fair and proper way. It applies to computerised information and to some manual records, such as personnel files.
According to the Information Commissioner, employers should make sure that their employees are aware of what they are doing and why. He has produced a code of practice to help employers, based on the requirements of the Data Protection Act.
The Information Commissioner also advises employers to be clear as to why they want to monitor their employees. They also need to be clear as to the benefits that will be delivered as a result.
It is usually intrusive to monitor employees and they are entitled to a fair degree of privacy. So, before employers start the monitoring process, they should think about whether there is any other way they can achieve their aims with less adverse impact on their staff.
What does the code say?
The code on monitoring makes a number of good practice recommendations that include the following:
- that monitoring should only take place for a clear, justified purpose, and employees should be aware that it is taking place.
that emails that are clearly marked personal or private should only be opened by employers in exceptional circumstances
that secret monitoring should only be authorised by senior management, and strictly targeted. It should only be used in extreme circumstances – for instance, for suspected criminal activity when it would be counterproductive to tell the individuals about the monitoring
that employees should otherwise know when any video or audio monitoring is being carried out, and why
that employers must assess the benefits to them as well as any adverse impact on their employees before they start to monitor them.
What restrictions are placed on employers?
Once an employer has decided to monitor their staff, they must tell them of their intention – perhaps by putting a notice on the noticeboard or via email. Whatever information they obtain through monitoring should only be used for the purpose for which it was carried out, unless they find out something they cannot ignore (a breach of health and safety, for instance).
The information they obtain must also be kept secure (so as few people as possible should be in the know), and they should not keep it for longer than necessary.
What policies can trade unions negotiate?
Trade unions should encourage employers to draw up policies to deal with electronic and telephone communications. This is also recommended by the code of practice.
The electronic policy should:
- state that their employer monitors emails and Internet use
any disciplinary action that the employer will take if anyone is found in breach of the policy
set out a code of conduct for Internet users which identifies the circumstances in which they may use the Internet and the standards that apply
make clear that anyone found accessing adult or pornographic sites will be subject to disciplinary action, which may result in dismissal
warn employees not to make potentially defamatory statements by email
require all Internet downloads to be subject to rigorous virus checks
require personal communications to be kept to a minimum
make clear that all other policies (such as harassment, discrimination and bullying) apply equally to Internet and email use.
Ideally, employers should appoint someone as a “monitoring officer” who has responsibility for ensuring compliance with the code, as well as ensuring that employees understand why the monitoring is being undertaken.
Trade unions should also draw up a policy to deal with telephone calls, addressing the following points:
the type of calls that employees can make at work – such as quick calls to sort out domestic arrangements
the timing of the calls they can make – for instance, an employer may only agree to let someone make calls during their breaks
where the calls can be made from – in other words, whether they can be made from the phone on the employee’s desk (if they have one) or whether they have to use a public phone. If the latter, the employer would have to ensure that sufficient were installed
any disciplinary measures that the employer can take in the event of a breach of the policy.