Lynette Copland, a secretary at Carmarthenshire College, was awarded 3,000 euros plus costs of double that by the European Court of Human Rights in the case of Copland v UK after succeeding in a challenge against her employer and the UK Government (the College being a statutory body, publicly funded and administered by the state).
A senior member of staff at the college secretly monitored Ms Copland's telephone calls, email correspondence and internet usage, allegedly for 18 months, without her consent. Ms Copland claimed her employer's activity breached her rights under Article 8 of the European Convention of Human Rights, which provides that "everyone has the right to respect for his private and family life, his home and his correspondence".
The college had no policy in place at the time informing employees that their communications may be monitored and the court ruled that Ms Copland therefore had a reasonable expectation as to the privacy of calls made from her work telephone, as well as her email and internet usage. It said that the monitoring carried out was an interference with Ms Copland’s rights, was not "in accordance with the law" and had therefore been a violation of her rights.
Points to noteThe wrongful monitoring in this case took place in and around 1998/99 before the Regulation of Investigatory Powers Act 2000 (RIPA) came into force. RIPA, in summary, now makes it unlawful for employers to intercept communications unless there are reasonable grounds to believe that staff and users have consented. The Telecommunications (Lawful Business Practice) Regulations 2000 have also been enacted since then and set out circumstances in which employers may record or monitor employees’ communications without consent. Again, employers are, however, required to take reasonable steps to inform employees that their communications might be intercepted.
Data protection legislation has also moved on since then and in short means that monitoring must be proportionate. The Information Commissioner has indicated that the Data Protection Act 1998 requires openness: if employers wish to monitor their workers they should be clear about the purpose and satisfied that the particular monitoring arrangement is justified by real benefits that will be delivered. Such monitoring should be limited, warranted and specific. Workers should be aware of the nature, extent and reasons for any monitoring, unless (exceptionally) covert monitoring is justified, for example, where an employer is satisfied that there are grounds for suspecting criminal activity or equivalent malpractice, and that telling people about the monitoring would make it difficult to prevent or detect such wrongdoing.
This case serves as a useful reminder of the importance to employers (both private and public sector) of having up-to-date computer/telecommunications-use policies and informing employees that their computer/telephone use may be monitored. Such polices too are of course essential ingredients in successfully defending allegations of unfair dismissal in internet/email misconduct cases.
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