Britain’s bosses have been warned they risk legal action if they pry on staff email inboxes or listen to voicemail messages – unless they have good reason as well as the individual’s prior permission – according to a senior employment lawyer.
Simon Gilmour at legal firm Shakespeares believes the fallout from the phone hacking scandal at News International is likely to fuel closer scrutiny of employers’ use of investigatory powers to monitor the activities of their employees, especially their use of internal communications networks.
On July 19, the Information Commissioner revealed plans to review the laws surrounding phone hacking and regulation in this area is likely to be tightened in the future, claims Gilmour.
Under current UK law, employers are permitted to monitor their employees’ Internet use and their email, text and phone messages in some limited specific circumstances. For example, monitoring is allowed if employers have reason to believe that an employee is doing something they shouldn’t, which may or may not include criminal activity, or where it is in the interests of national security. In some instances, monitoring may also be permissible for quality or business continuity reasons, but the law states that employees must be warned in advance that this may happen.
According to Gilmour, some SMEs may not have the necessary communications policy in place. As a result, they are unlikely to have their employees’ consent to monitor their communications messages while they are away on holiday. Without this, there are significant legal risks in carrying out any monitoring.
Gilmour said: “At this time of year it is especially important that employers are as open as possible with their employees about any monitoring that could take place while they are away on holiday and state the business reasons for this. Having a clear communications policy in place, preferably signed by employees, can help to ensure that the entire workforce is aware of any potential monitoring activity.”
“Some employers may believe they already have the consent of their employees to monitor their communications activity because they have included clauses referring to their use of investigatory powers in employment contracts. But this practice may not stand up to closer scrutiny if complaints about the intrusive nature of monitoring activity arise in the future.
“Employers need to review their practices in this area to ensure that any monitoring of staff communications is reasonable and justified, and that it is carried out as openly as possible, where necessary, with the consent of individual workers,” Gilmour added.
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