You’ve been framed – by the employer

Would it be a fair cop if an employer’s video surveillance recorded misconduct by an employee? Can an employer put his employees under video surveillance or enter the email records on computers used by employees to find acts of misconduct?

A century ago, Henry Ford used to send snoops round to check on his employees at home to ensure that standards of hygiene were maintained by his car workers.

Today, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the convention) would put a stop to that kind of snooping. The convention has been adopted into English law by the Human Rights Act 1998.

Video Surveillance

It all comes down to an expectation of privacy. Is it reasonable for the employee to harbour an expectation of privacy? So when an employee goes about their normal work activities or during down time, for example lunch breaks, is it reasonable for the employee to expect that his privacy is respected and that his movements are not recorded and held on video.

Privacy is not surrendered just because the employee enters the employer’s premises to work. The right to privacy continues, although perhaps the standard of privacy that can be expected is lower.

All things equal, the employee can expect privacy. So if the employer videos the workforce, the employee will be able to lodge a claim under the Human Rights Act 1998.

Emails

Nearly all office staff enjoy use of email to enable them to do their job. The staff will also have access to the internet for the same reason. Nearly all office staff will use the office email to send private emails and peruse the net to buy their other half’s birthday presents. Some staff may use their own private email addresses from their employer’s terminals.

On occasions these facilities are misused and sometimes serious disciplinary offences are committed e.g. visits to pornographic sites or preparations made by staff to steal their employer’s customers.

To monitor employees, the employer will need to enter the employees’ computer to see what they have been up to.

Stop right there.

The Human Rights Act is now supported by the Regulation of Investigatory Powers Act 2000 (wonderfully shortened to RIPA) in stopping the employer doing any such thing. Even if the employer owns the computers, pays for the electricity to power them, and the illicit use occurred during work hours, the employer will not overcome the combined forces of the Human Rights Act and RIPA.

It’s that demon, the expectation of privacy again.

The solution

Slay the demon.

If the employer wishes to install video recording equipment in the work place, put up signs saying that video recording is taking place everywhere. By removing any reasonable expectation that an employee’s presence at work can give rise to privacy, it cannot be relied upon to found a claim for breach of it.

The signs should be boosted by clauses in the contract of employment clearly removing the expectation of privacy.

The expectation of privacy for computer use, including emails is particularly aided by RIPA.

The solution again is to kill the expectation of privacy. This is best done with a clause in the contract of employment. Employers are advised to go further and amend the email signature which appears at the bottom, every single time an email is sent. The amendment should remove the dreaded expectation of privacy. Zealots in the legal world want to go further and say no employee should be able to get beyond the signing in screen without ticking the no privacy box.

If employers want a copy of the wording Sharma Solicitors themselves use to remove the expectation of privacy for emails, fax, or telephone use, dare we say, email us and we will be happy to supply the script (free of charge).

Our advice to employees is the next time you have been framed, make sure it is only Harry Hill offering you 250 quid.

For further information please contact Sharma Solicitors 0845 430 0145. Sharmasolicitors@sharmasolicitors.com  www.sharmasolicitors.com

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