Technology now makes it possible for employers to keep track of virtually all workplace communications by any employee, on the phone and in cyberspace, whether at their desk, on their mobile, or even outside the office. Many employers take advantage of these tracking devices: A survey of more than 700 companies by the Society for Human Resource Management (SHRM) found that more than half of all employers are monitoring their employees’ telephone calls.
There are a number of reasons that employers would want to monitor or even record the phone calls of their employees, such as quality assurance, customer relations and training. Employers may also want to take steps to make sure employees are not giving trade secrets to competitors, engaging in illegal conduct at work, or using company communications equipment to harass or bully their coworkers.
In the UK, prior to 1985, there was no statutory regulation of interception of phone calls, whether it be for personal or business reasons. With respect to governmental surveillance, it was carried out under the Royal Prerogative, with the only oversight being the informal “judges rules.”
Moreover, for private citizens, under British common law, there is no right of privacy. This means that individuals cannot bring claims for invasion of privacy unless there is a specific tort, legislation or regulation that has been violated.
Early attempts to enact legislation to fill the gap in British call interception law ran afoul of the EU’s Declaration on Human Rights and were voided by decisions of the Strasbourg Court.
The Regulation of Investigatory Powers Act 2000 changed that, and now provides most of the framework for call interception, and monitoring or recording of phone calls. However, it soon became apparent after its enactment, that businesses which had a need to monitor and record their employee calls were not covered by this legislation.
Accordingly, the Telecommunications (Lawful Business Practice)(Interception of Communication) Regulations 2000 were also enacted. Commonly referred to as the LBP, the regulations were designed to maximize the ability of companies to monitor employee communications while providing some protection for privacy.
Under the LBP Regulations, monitoring or recording communications is legal if it is done for these reasons:
• to establish the existence of facts;
• to ascertain compliance with regulatory practices or procedures;
• to demonstrate standards which should be achieved (quality control and training);
• to prevent or detect crime;
• to detect unauthorized use of a telecommunications system;
• to secure effective system operation;
• to determine whether communications have a business or personal purpose; or,
• to monitor customer support lines.
Most importantly, the business must make reasonable efforts to notify persons using the telecommunications system, that interceptions may be made. This can be accomplished through dissemination of a company policy statement, or through a recorded announcement at the start of a call.
Under the LBP, employers in the UK are free to monitor any phone calls made by its employees. Technically, the regulations require that once an employer determines that the call is personal, and, not business-related, the monitoring should cease. However, there could be a number of reasons for continuing the monitoring of the call, including the following: to detect improper use of company equipment; to reduce time-wasting activities which adversely affect productivity, to prevent or detect crime, and also to determine adherence with other company policies (ie, harassment, bullying or gambling).
If the employer records the phone calls of its employees, the use and storage of those recordings is regulated by The Data Protection Act 1998. The DPA was enacted to protect the privacy of the data contained within the recordings. The act requires obtaining the consent of the call participants if the contents of the call are disclosed to third parties. It also requires companies to develop systems and procedures for maintaining the confidentiality and security of the data.
Below are the basic guidelines of the DPA, as it applies to companies that are recording employee phone calls for internal purposes only (marketing, quality assurance, training, customer care, detection of illegal or prohibited behavior):
- Data can only be used for the explicit purpose for which it was gathered.
- Data cannot be released to a third party without the consent of the individual it refers to, unless there is a lawful reason to do so – for instance, the prevention or detection of criminal activity.
- Personal data cannot be kept for longer than is necessary and must be kept up to date.
Tips for Staying Within the Law
Employers in the UK currently have a lot of leeway in monitoring their employees’ communications, as mentioned in the Eavesdropping in the UK article. However, the law in this field is evolving rapidly, as technological change and increasing concerns about privacy pressure Parliament, regulators, and the courts to take action. If you decide to monitor employees, consider these tips:
• Adopt a policy. Tell your workers that they will be monitored, and under what circumstances. If you indicate that you will respect the privacy of personal phone calls or email messages, make sure that you live up to your promise. The safest course is to ask employees to sign a consent form, as part of their first-day paperwork, acknowledging that they understand and agree to the company’s monitoring policies.
• Monitor only for legitimate reasons. You will be on safest legal ground — and waste less time and money — if you monitor only for sound, business-related reasons. If you have a reasonable suspicion that a particular employee is engaging in unauthorized use of your equipment, that would certainly qualify as legitimate cause for monitoring. Equally sound reasons include keeping track of productivity or monitoring the quality of customer service.
• Be reasonable. Employees will not perform their best work if they are in constant fear of eavesdropping. Overreaching monitoring – or unnecessarily Draconian policies about personal use of communications equipment – will only result in employee resentment and attrition. It is reasonable to prohibit workers from spending hours on the phone wooing a lover or catching up on gossip with an old friend. But it is unreasonable to prohibit brief personal calls of the “I’ll be home late” or “where shall we meet tonight” variety.