Employment Practices Data Protection Code Part 3

Part 3 of the Information Commissioner’s "Employment Practices Data Protection Code" has finally been made available on the Commissioner’s website (www.dataprotection.gov.uk/dpr/dpdoc.nsf). This part of the Code sets out the Commissioner’s recommendations on how to comply with the Data Protection Act 1998 (the "Act") in the area of monitoring employees’ activities.

In addition to Part 3 of the Code, the Commissioner had also published Supplementary Guidance aimed at larger employers and Guidance for Small Businesses. These are not part of the Code but provide more detailed notes and examples.

• Employers should carry out "impact assessments" (whether formally or not) to determine whether their monitoring activities are justified. Monitoring is only permitted where there are significant risks which justify that level of monitoring, taking into account the impact on workers, and less intrusive methods would not adequately reduce those risks.
• Save in exceptional circumstances, employees should be told in advance what monitoring will take place in terms of its nature, extent and rationale. It would not be enough simply to state that the employer reserves the right to monitor for certain broad purposes – workers should be made aware when monitoring will actually occur, why, the scope of it and what will be done with the information. Employers should therefore ensure that they have comprehensive policies in place detailing all the types of monitoring they actually carry out from time to time.

The types of activity covered by the Code include:

• recording telephone calls, listening into voicemail messages, checking logs of telephone numbers called;
• randomly opening up workers’ emails or using software to monitor the destination or content of emails;
• reviewing logs of websites visited;
• collecting information on work output;
• in-vehicle monitoring;
• making video and audio recordings in or outside the workplace;
• obtaining information from third parties such as credit reference agencies.

Note that one individual simply watching or listening to another employee falls outside the Act and Code. The Code also does not cover making and accessing business records on a particular customer transaction in order to deal with that customer, nor does it address directly the accessing of information already stored, which concerns a particular worker, as part of a one-off investigation into that worker – although data protection issues will still need to be taken into account in such cases. In contrast, the Code does address the situation where an employer suspects an individual of misconduct and starts monitoring their conduct specifically, or where the employer is aware that someone is committing misconduct and institutes monitoring to discover who it is.

Section 2 of Part 3 of the Code concentrates on the need to carry out an impact assessment if an employer is going to monitor. This involves:

• identifying the purpose of the monitoring and its likely benefits;
• identifying the adverse impact (eg, intrusion into workers’ private lives and correspondence, impact on other persons etc.);
• considering alternative methods of achieving those benefits;
• taking into account the obligations arising from monitoring (notifying workers about the monitoring, security arrangements, and subject access rights);
• judging whether the monitoring is justified (weighing the degree of business risk to be addressed against the degree of intrusion into privacy, assessing what is the least intrusive means of achieving the aim etc.).

Obviously it would be sensible to keep a record of the impact assessment.

If monitoring is justified on the basis of an impact assessment, there is no need generally to obtain the workers’ consent. Monitoring which is not so justified could in theory be carried out anyway if the workers had consented, but the Commissioner takes the view that, in the employment context, usually there will not be "freely given" consent. In any event consent can be withdrawn at any time, so it is safer for employers to ensure their monitoring is justifiable on the basis of an impact assessment.

Section 3 of Part 3 is described as "good practice recommendations" and amounts to an indication of what types of monitoring are likely to be justified in particular situations – although of course the outcome of a particular impact assessment will depend on the particular circumstances of the employer.

It includes the following sections:

This section is standard to each Part of the Code. Its format has been revised since the version drafted by the previous Commissioner for Parts 1 and 2, but the substance is largely the same.

Monitoring should only be carried out if the adverse impact is justified by the likely benefits – preferably by using an impact assessment. Workers should normally be made aware of the nature, extent and reasons for any monitoring. Monitoring should not be used to enforce the employer’s rules and standards unless those rules and standards have been made clear in a policy which also sets out the nature and extent of associated monitoring. The Supplementary Guidance states that simply saying that monitoring may take place is not sufficient; policies should include details of when monitoring information is likely to be obtained, why it is being obtained, how it will be used and to whom, if anyone, it will be disclosed.

Information obtained by monitoring should be kept secure, only accessed by restricted personnel, used only for the purposes for which it was collected (unless it reveals activity that no employer could reasonably be expected to ignore, or such use is in the worker’s interest), and presented to the worker for comments before being used against him/her.

Employers should adopt clear policies explaining what business and personal use of communications systems is permitted and the purposes, extent and means of the monitoring that will be carried out. It is not sufficient to ban accessing or circulating "offensive material" – employers need to explain what this includes and should consider giving examples.

The interception of a communication in the course of its transmission will also need to comply with the Regulation of Investigatory Powers Act 2000 – the Supporting Guidance gives further details on this.

There are different degrees of monitoring – automated monitoring will often be the least intrusive, followed by monitoring call or traffic records or time spent on the internet, then monitoring email headings/web addresses, and then targeted monitoring of the content of phonecall/email/visited website content. The least intrusive method to achieve the aim should be used. Software that prevents accessing certain internet sites should be used in preference to software to detect such access.

If voicemail messages are to be checked for business messages while a worker is away, the worker should be told of this and of the unavoidable risk that personal messages may be heard. If email accounts are to be accessed while a worker is away, again they should be informed and encouraged to use a marking system to denote emails as private or personal, and, wherever possible, employers should avoid opening emails which clearly show they are private or personal. With regard to monitoring for other purposes, again personal emails should only be opened in exceptional circumstances, for example where a worker is suspected of using email to harass a colleague. (This is toned down from an earlier draft of the Code which stated that emails which the employer has reason to believe are "personal" should not be opened.)

The external party to a communication should also be made aware of the monitoring so far as possible.

The Code no longer goes so far as to say that, if personal use is permitted, employees should be given facilities to mark communications as personal and access to private email and internet accounts. However, the existence of such facilities will affect the impact assessment for monitoring the business facilities provided, and monitoring of these "private" facilities will usually need greater justification. A ban on personal use is permissible, but does not in itself justify accessing the content of personal communications.

Monitoring should be targeted at areas of particular risk and workers should usually be told where the recording equipment is located and the purpose of the monitoring. Continuous monitoring will only be justified in exceptional cases, for example where health hazards or security is a particular issue.

Covert monitoring should not be used except as part of a specific investigation where criminal activity or equivalent malpractice is suspected and where notifying workers about the monitoring would prejudice its prevention or detection. Covert video or audio monitoring should not be used in places such as toilets or private offices, save where there is a suspicion of serious crime and there is an intention to involve the police.

The same restrictions should be applied to private investigators used by the employer – so the use of covert video footage of an employee’s activities at home to demonstrate that, contrary to his claims, he is not disabled is likely to be a breach.

Where private use of a vehicle is allowed, it will rarely be justified to monitor that private use without the worker’s express consent – this means that workers may need to be able to deactivate the monitoring.

A worker’s financial circumstances should not be monitored unless there are firm grounds on which to conclude that a worker in financial difficulties in the job in question actually poses a significant risk to the employer. Workers should not normally be monitored through information held on them in a different capacity eg, as a customer.

There is further advice in the Supplementary Guidance, which includes a section on monitoring which involves processing sensitive data. This will be permissible provided the general provisions of the Code are satisfied and one of the relevant conditions set out in the Act applies. An example may be where such processing is "necessary" to comply with the employer’s obligations, such as to take reasonable steps to prevent its workers being subjected to discrimination or harassment, or to ensure their health and safety. Part 1 of the Code on recruitment and selection and Part 2 on employment records have already been published. We will inform you as soon as Part 4, on medical information, is available.

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

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