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Monitoring employee correspondence
Published August 2007
Is your company policy clearly written?
The Employment Practices Code issued by the Information Commissioner under the Data Protection Act 1998 lays down guidelines for the monitoring of employee correspondence.
The 1998 Act extends to data collected by employers in the course of monitoring employees and will cover not only documentary evidence but video, audio, recorded telephone calls, in vehicle monitoring of driving patterns and other recorded information.
The code makes it clear that employees have a legitimate expectation to keep their personal lives private and that they are entitled to a degree of privacy in the work environment.
The code makes the following recommendations:-
- Carrying out an assessment of the impact of any proposed monitoring. This will consider looking at what interests the employer seeks to protect. What the effect will be on employees.
- Consideration of alternatives and whether the interest that the employer is protecting justifies the potential interference?
- Have a clear written policy on monitoring set out writing and provided to all employees which explains the nature and extent of the monitoring as well as the reasons for it and makes it quite clear what will be done with the information collected.
- Comply with the data protection principles as in other areas.
- Ensure that all those carrying out the monitoring are aware of the Data Protection Act 1998 obligations.
- Ensure that the monitoring system is set up so that if any requests are made by employees in accordance with their rights under the Act, summaries of the information can be made available.
- Where employers wish to monitor e-mails and other electronic communications there are additional regulations to be observed namely the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 and the Regulation of Investigatory Powers Act 2000 which deal with the interception of electronic correspondence i.e. between sending and receipt. This would cover the opening of unread e-mails but does not cover checking e-mails which have already been opened.
- Briefly it is against the law for a business to intercept an electronic communication on its own or anyone else’s system although there are exceptions where there is consent or where it is for record keeping purposes or checking standards or is to prevent or detect crime.
- One thing the code makes clear is that secret monitoring of employees will rarely be justified unless there is something going on which is criminal or close to it.
- Employers need to be aware of the obligations placed on them and check that their policies reflect those obligations.
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