This month's guest author is Michael Ford, barrister at Doughty Street Chambers and author of Surveillance and Privacy at Work, published by the Institute of Employment Rights.

Lurking behind the thin facade of human resources rhetoric, with its jargon of worker involvement and empowerment, are employer practices of surveillance which may have the effect of depriving workers of their autonomy, privacy and dignity. Computer monitoring of work-rates and working time, close circuit TV, "secret" customers, interception of phone-calls and e-mails, drug testing, psychometric screening and the collection of information about all aspects of workers' lives are just some of the examples of forms of "hyper-surveillance".

Call centre workers and banking staff will be very familiar with these practices. New technologies promise new threats. Already in the USA employers have used infra-red badges continuously to track worker movements and, yet more bizarrely, chair sensors to detect how long people are at their desks. An American judge strongly criticised the effect of such constant surveillance in a case involving CCTV filming: "[CCTV] is not only personally repugnant to employees but it has such an inhibiting effect as to prevent the employees from performing their work with confidence and ease... To have workers constantly televised is...reminiscent of the era depicted by Charlie Chaplin in "Modern Times" and constitutes...an affront to the dignity of man".

Workers and unions have increasingly begun to respond to the harms caused by these techniques, both through collective bargains and more direct forms of resistance (in the USA nurses' infra-red badges regularly turn up in patients' bed-pans). But the law has, up to now, failed to keep pace. At present there is no right to privacy in English law.

Although the Interception of Communications Act 1985 makes it illegal to intercept phone and e-mail communications, it does not apply to interceptions which take place on private networks - the usual manner of employer interception. "Bugging" and CCTV are entirely unregulated. Apart from the weak protection of the Rehabilitation of Offenders Act 1974 and the Data Protection Act 1984 (which only applies to information held on computers, and not to paper files), there is little restriction on the sorts of information employers can demand of workers, or what use employers can make of it.

The law on unfair dismissal provides only limited restraint against dismissals for out of work activities. To take one example, in Mathewson v RB Wilson Dental Laboratory [1988] IRLR 512 a dental technician was summarily dismissed when his employers learnt that he had been caught by the police in possession of a small piece of cannabis during his lunch hour. Although there was no evidence that he had ever used it or even possessed it at work, the tribunal's finding of fair dismissal was upheld on appeal.

But there are signs of change, much of it driven by Europe. Already, buried away in paragraph 4 of the Schedule to the Display Screen Equipment Regulations 1992 (derived from a European Directive) is a provision making it illegal for an employer to use a "quantitative or qualitative checking facility...without the knowledge of the operators or users"; this would apply to secret monitoring of the work-rates or performance of computer workers. Other laws which are shortly to come into effect or to be introduced in Parliament should offer additional and more general protection. They present new opportunities for unions and workers to challenge some forms of surveillance.

  • First, the Human Rights Act 1998, which comes into force on 2nd October 2000, will give legal effect to most of the Articles of the European Convention on Human Rights, including the right to privacy in Article 8. The European Court of Human Rights has recognised that this right does not end at the workplace door. Finding that private interests could include professional activities, in Niemitz v Germany (1992) 16 EHRR 97 it stated that "it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest opportunity of developing relationships with the outside world". Subsequently, in Halford v UK [1997] IRLR 471 the Court held that secret phone tapping of a police woman's office telephone infringed her right to privacy, and the same conclusion applied to dismissals of gay and lesbian soldiers by the army: see Smith v UK [1999] IRLR 734. While the nature and extent of the right to privacy at work remains rather undeveloped, the enactment of the Human Rights Act is likely to restrict some of the more flagrant workplace practices. Article 8 may require, for example, the provision of private spaces at workplaces, times and means of communication which are free from surveillance. Secret surveillance is likely to infringe Article 8 in the absence of good justifications.

 

  • Second, the Data Protection Act 1998 comes into force on 1st March 2000. Unlike the 1984 Act, it is not restricted to information held on computers and will apply to a wide range of information held by employers about the workforce e.g. in personnel files. It regulates what information is collected, how it is kept, and what is done with it; and it gives important rights of access to "data subjects". Of particular note are the provisions concerned with "sensitive personal data", defined in s.2 to include information about such matters as an individual's political opinions, religious beliefs, trade union membership, ethnic origins, health, sexual life and the commission or alleged commission of criminal offences. The obtaining and processing of information of this sort is tightly regulated. Either the worker must give explicit consent to the processing or another condition must be met - for example, that processing is "necessary" to meet a legal duty imposed on the employer. Expressly recognising the threat of new technology to personal privacy in the workplace, the Data Protection Commissioner has announced that she will issue a Code of Practice governing the use of personal data by employers which will introduce tighter restrictions on employer surveillance, automated processing and the collection of sensitive information.

 

  • Third, the government has stated that it will shortly introduce new legislation controlling the interception of communications, in the form of a Regulation of Investigatory Powers Bill. The inadequacy of the Communications Act 1985 was conceded by the government in the Halford case. Following the ruling of the European Court of Human Rights, the Home Office issued guidance (HOC 15/99) to all government departments, advising them to give adequate warnings of any interception of workers' phone conversations and to provide them with payphones to make private calls. OFTEL published guidance along similar lines to private companies. A Home Office consultation paper, published in June 1999, has proposed new legislation which will make it unlawful to intercept communications on all telecommunications networks, whether public or private. It proposes, however, that the new Act will not apply to interceptions in the course of lawful business where the system operator has taken reasonable steps to inform parties that these may occur; secret interceptions will require authorisation.

 

These developments will go some way to overcoming the current legal blindness to most forms of privacy infringements at work. While the strategic importance of the new laws should not be under-estimated, unions and workers should not fall into the opposite error. The law is only likely to regulate some, usually the most blatant, kinds of privacy infringements; much unwelcome surveillance will continue to fall outside its net. Laws will usually be several years behind the technology, and the political appetite for closer regulation is lacking. Moreover, forms of surveillance which are justifiable in one type of workplace - for instance, to protect health and safety may be perceived as unwarranted intrusions in another. Compulsory duties of information and consultation, as in France, would be welcome. In their absence, the best way forward may well be to seek to address these complicated issues through collective bargains or other forms of joint regulation - as some unions have already begun to do. Laws from other countries and international organisations may serve as a useful starting point (see, for example, the International Labour Organisation Code of Practice on the Protection of Workers' Personal Data and the rather more enlightened laws in France).