Briefing on Privacy at Work (Briefing No.
78 April 2004)IntroductionThis is a brief guide
for branches and members on surveillance and privacy at work issues that they
may have to deal with. It outlines the law, details the main issues and reveals
the findings of a recent UNISON Scotland survey
on privacy at work. OverviewIn recent years, an
ever-increasing number of workers have found that their employer is invading their
privacy at work. Whilst surveillance of the workforce is not a new phenomenon,
the types of technologies employed in the modern work-sphere are now more far-reaching
and intrusive than simply being overseen by the boss. Among the many powerful
and sophisticated technologies being used by employers in the UK are "bugging"
tools which electronically eavesdrop on telephone conversations, software which
allows an employer to see what is currently on an employee's computer monitor,
email monitoring systems which can do such things as search, block and delete,
as well as video surveillance cameras which track behaviour and movements. The
Legal FrameworkThere are three main pieces of legislation that are
relevant to monitoring and surveillance in the workplace - the Human Rights
Act 1998, the Data Protection Act 1998 and the Regulation of Investigatory
Powers Act 2000. In addition, the Information Commissioner has also issued
a code of practice, The Employment Practices Data Protection Code, which
is intended to assist employers in complying with the 1998 Data Protection Act
and to establish good practice for handling personal data in the workplace. Article 8 of
the European Convention on Human Rights (now part of the Human Rights Act 1998)
states "everyone has the right to respect for his private and family life, his
home and his correspondence." However this only directly applies to public bodies,
so UNISON members in the private sector have less protection. This Act does cover
private activities conducted in the workplace, but it is unclear what effect it
has on privacy and surveillance. The DPA is the main law relating to privacy at work,
and applies to any recorded information obtained through the interception of communications.
Most processing of information must comply with the DPA and surveillance may also
be covered such as records of video recordings or performance monitoring. The
Codes of Practice relating to the DPA are described below. This code
explains the law in relation to data processing and sets out good practice recommendations
for employers to help them comply with the Data Protection Act. The Code is in
four parts, these being 'Recruitment and Selection', 'Employment Records', 'Monitoring
at Work', and 'Workers Health records', which will be published in June 2004.
The Codes say that workers have a legitimate expectation that they can keep their
personal lives private and that they are also entitled to a degree of privacy
in the work environment. Two other regulations cover privacy and the
interception and monitoring of telephone calls, e-mails and other communications.
The Regulation of Investigatory Powers Act 2000 created a new offence of
unlawful interception of communications on a private network. Unfortunately the
Lawful Business Practice Regulations 2000 introduced at the same time,
authorise employers to monitor or record many communications without the
consent of the caller, the sender or the recipient. These regulations are so wide
as to allow virtually any monitoring without consent. In addition interception
of communications is considered lawful if it is "reasonably" believed that both
parties involved in a communication had consented to it. - Findings
- UNISON 'Privacy at Work' survey
UNISON Scotland recently conducted
a survey on privacy at work issues (click here).
This survey highlighted that for many of our members, particularly those in customer
facing jobs in call centres and similar workplaces, surveillance in the workplace
has become ever more invasive. The survey found a high level of electronic monitoring
by e-mail, phone and other electronic measurement, of both work related and private
communications. In terms of figures, 82% of those surveyed stated that their employer
monitored their email and a further 67% and 23% respectively, stated that their
phone calls were monitored and that there PC and Internet usage was being tracked.
The key findings from the survey were: -
A high level of monitoring
exists in customer facing jobs in Scotland. This includes monitoring of private
communications. -
Where policies exist they are poorly explained
and have failed to convince staff that monitoring is justified. -
Monitoring is generally regarded as demeaning and in many cases is causing
high levels of psychological distress. -
Monitoring has a significant
negative impact on recruitment and monitoring Action for
BranchesBecause of the weaknesses in the law, it is important that
UNISON branches ensure that they negotiate agreements with employers to protect
staff from unwarranted and covert monitoring and surveillance. Many branches may
already have policies covering some aspects of privacy, such as telephones and
fax machines. They may even have policies on email and Internet use, but too often
these are not negotiated and are too general to really protect staff from a management
that decides to target or victimise staff. The Institute of Employment
Rights codeThe Institute of Employment Rights has produced a draft
code of practice on surveillance in the workplace. The IER code is intended to
help employers and trade unions to draw up agreed procedures and controls for
the introduction and use of surveillance and should be consulted by branches prior
to negotiations with employers.The code recommends 5 key principles for guaranteeing
fairness and protecting against infringements of privacy at work. These are:
-
Transparency -
Consent -
Consultation -
Private Spaces -
Proportionality Further
Info:Publications Prior to negotiations with employers
branches should consult the following publications 'The Draft Code of Practice
on Surveillance of Workers' by Michael Ford, published by the Institute
of Employment Rights and also 'Monitoring and Surveillance a Guide to Privacy
at Work' published by the Labour Research Department. Websites Introduction
to the Data Protection Act- http://www.cf.ac.uk/infos/guides/
legislation/dataprotection/itc033.pdf TUC Surveillance at Work: Sensible
Solutions - http://www.tuc.org.uk/
law/tuc-2684-f0.cfm UNISON Bargaining on Privacy - http://www.unison.org.uk/bargaining/
doc_view.asp?did=144&pid=323 
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