UK: Big Brother . . . R.I.P?
The massive media coverage following the enactment of the Human Rights Act 1998 ("the HRA") on 2 October 2000 has sent a chill down the spine of most employers. The HRA, described by some as the most important piece of egislation since the Magna Carta, incorporates into UK law the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). Examples of the rights which have an impact on employment law include:
the prohibition of torture or inhuman or degrading treatment; the right to a fair trial; the right to respect for privacy and family life; the right to freedom of thought, conscience and religion; the right to freedom of expression and after expression the right not to be discriminated against on grounds such as sex, race, religion and political opinion in relation to Convention rights.
Most of the rights in an employment context are "qualified" in that they can be subject to limitations and restrictions if an employer is able to show that they are necessary to protect the freedom and rights of others. What are the implications for employers? The HRA itself only has direct effect upon the actions of "public bodies" but Courts and Tribunals will be bound to take the provisions of the HRA into consideration when interpreting employment legislation under which an employee is making a claim. For example in an unfair dismissal claim, it may be argued that an employee’s human rights have been infringed if he/she has been dismissed for not wearing a specific uniform or for breaching a no smoking policy. The tribunal would assess whether such restrictions were reasonable and compatible with the Convention. An employer may be able to show that a certain dress code was necessary to maintain the public image of the company and/or that its duty of care to provide a safe working environment justified a prohibition on smoking.
Similarly could an employee allege constructive dismissal where their telephone calls or email communications have been monitored? Will a Tribunal strike out evidence of wrongdoing in an unfair dismissal claim where it has been obtained by monitoring such communications? The risk that this could be a breach of the right to privacy under the HRA has been one of the areas of most concern to employers. It is also the subject of a new piece of legislation that has not had the widespread publicity afforded to the HRA namely The Regulation of Investigatory Powers Act 2000 (" the RIP")
The RIP updates the legislation governing the interception and monitoring of communications. Under the powers granted by the RIP the Secretary of State has now issued the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 ("the Regulations"). These will come into force on 24 October 2000. The Regulations make it clear that employers retain the right to car ry out monitoring without the employee’s specific consent first being obtained, in certain circumstances, which include:
recording evidence of business transactions; ensuring compliance with regulatory or self-regulatory guidelines; maintaining the effective operation of the employer's systems (e.g. preventing viruses); monitoring standards of training and service; preventing or detecting criminal activity; preventing the unauthorised use of the computer/telephone system - i.e. ensuring the employee does not breach the company's E-mail or telephone policies.
Nonetheless, the Regulations provide that it will be necessary for employers to take reasonable steps to inform employees that their communications might be intercepted. It is therefore important that all employers introduce an e-mail/internet policy for their workers which clearly sets out the right to monitor such communications. The question of whether the Regulations by specifically allowing employers the right to monitor such communications is in conflict with the employee’s right to privacy under the HRA will no doubt be a matter of some contention. Indeed arguably many employers are already potentially acting unlawfully given the hiatus between the HRA coming into force on 2 October and the Regulations not being in force until 24 October.
What further guidance can employers expect? The Data Protection Commissioner is working on a draft Code of Practice, due out later this month, covering use of CCTV in the workplace which will also take into account the Regulations on the monitoring of emails and is likely to place tighter constraints on employers. Case law will eventually provide the best guidance but in the meantime to lessen the risks of any claims employers should ensure that they:
STOP PRESShave clear a policy regarding the monitoring of telephone calls and e-mails; ensure that dress codes and smoking policies are capable of justification; and operate a scrupulously fair disciplinary procedure.
Implementation of the ACAS voluntary arbitration scheme has again been delayed. The scheme will be a voluntary alternative to tribunal proceedings but will require employees to waive their right of appeal. The DTI are reviewing the implications that this requirement may be in conflict with the provisions of the HRA.
The information and opinions contained in this publication are provided by national law firm Hammond Suddards Edge. They should not be applied to any particular set of facts without seeking appropriate legal or other professional advice.
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