Keenan and Riches’BUSINESS LAW

Chapter 16Employing labour

effective operation of the system as by monitoring for

viruses or other matters that threaten the system.

Monitoring, but not recording, may also take place

without consent in the following situations: (a) to deter-

mine whether or not the communications are relevant

to the business as by checking e-mail accounts to access

business communications in staff absence; and (b) in

regard to communications that are to a confidential,

anonymous counselling or support helpline.

Businesses that wish to rely on the above exceptions

are required to make all reasonable efforts to tell those

who use their telecoms system that their communica-

tions might be intercepted. This applies only to the

employer’s own staff.

Note. The regulations are a significant relaxation of the

prohibitions contained in the Regulation of Investig-

atory Powers Act 2000 and are made under a provision

in the Act that allows the Secretary of State to sidestep

the general requirement of consent in the case of con-

duct where it is felt legitimate to dispense with consent.

Involvement of the Information Commissioner

The Information Commissioner has issued Code of

Practice 3on employee surveillance. The main feature is

to require employers to carry out an ‘impact assessment’

to ensure that monitoring of employees’ communications

takes place only in accordance with needs. Monitoring

must be justified by ensuring that the benefits to the

organisation outweigh any detriment to the employees

concerned. The code does not support covert monitor-

ing, which should be rare, but might be used for the

prevention of detection of crime given that it has been

authorised at the highest management level, and where

there is a risk that the purpose would be frustrated by

informing the employee.

Given the rather vague nature of the law and the code,

employers will find that it is more efficient to have a

compliant company surveillance policy and commun-

icate it effectively to the employees.

The code, entitled Monitoring at Work, can be ac-

cessed at: http://www.informationcommissioner.gov.uk.

Human rights

There is some input from Art 8 of the Convention on

Human Rights. This gives a right of privacy that covers

correspondence and the workplace. The case of Hal-

fordv United Kingdom(1997) is relevant. The European

Court of Human Rights found that interception of

Ms Halford’s calls to her lawyer relating to a dispute

489

In addition, the employer is enabled to record all com-
munications without obtaining the consent of the
employee for the following purposes: (1) to establish the
existence of facts relevant to the business as by keeping
records of transactions and other communications in
situations where it is desirable to know the specific facts
of the conversation; (2) to ascertain compliance with
regulatory or self-regulatory practices or procedures
applying to the business; (3) to demonstrate or ascertain
standards that are or ought to be achieved by persons
using the telecoms system, such as monitoring for qual-
ity control and/or staff training; (4) to prevent or detect
crime; (5) to investigate and detect unauthorised use
of the employer’s telecoms systems; (6) to ensure the

References and data protection

The Information Commissioner has issued a good

practice note on the giving and receiving of references.

It is available at http://www.ico.gov.uk. The main points are

as follows.

■The employer giving the reference is protected by

Sch 7 to the Data Protection Act 1998. A reference

given for the purposes of the education, training

or employment of the data subject is ‘exempt

information’ and need not be disclosed by the

reference-giver to the person concerned. The

recipient of the reference will, however, hold

personal data on the relevant individual and must

consider any request for a copy under the usual

data protection rules on subject access. The subject

of the reference is, however, only entitled to

information about himself or herself and not

information about other people including their

opinions.

■The employer should not withhold information

already known to the person concerned.

Employment dates and absence records will be

known to the person concerned and should be

provided. Information relating to performance may

also have been discussed with the subject of the

reference as part of an appraisal system. These

disclosures could be made even where a reference

is marked ‘in confidence’.

■Where it is not clear whether the subject of the

reference knows about certain parts of the

information the Commissioner advises that the

receiving employer should contact the reference-

giver and ask whether he or she objects to the

information provided in the reference being given

to the subject and, if so, why.