UK Legal Question - Human Rights Article 8 4

[Welshbird]

I've just been reading this part of the Human Rights Act:

Article 8 provides that everyone has 'the right to respect for his private and family life, his home and his correspondence'. There is a clear risk that monitoring an employee's private telephone calls or emails in the workplace could be a breach of this right. Similarly, the imposition of unreasonable mandatory dress codes or drug testing at work and the use of CCTV data may be an infringment.

I've just re-checked my employers policy on email etc and found this

Employees should note that on commencement of employment that they waive all rights to privacy in anything they create, store, send or receive on the Company’s computer systems.

It strikes me that this may not actually be quite legal.

Does anyone have any opinions?

Fee

The question should be [red]Is it worth trying to do?[/red] not [blue] Can it be done?[/blue]

 

[CajunCenturion]

It's hard to say, but I think the gray area is in 'private'. From the CPID, "... monitoring an employee's private telephone calls or emails ..." (emphasis mine), the operative word is private. Now, when looking at the company's policy, I think it's intended to mean that anything you do on the company's computer is for and belongs to the company, and is therefore, not private.


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[Ed2020]

That's my understanding of it as well, but unless the quoted section is referring to a company monitoring personal email and telephone calls made from non-company equipment (which would surely be illegal anyway?) does't this make the section largely pointless?

Ed Metcalfe.

Please do not feed the trolls.....

 

[Welshbird]

It could be., Just reading more bout Article 8 of the HRA implies that one is entitled to privacy at work almost regardless of whose equipment is used.

The one test case that has been brought so far was of someone having a personal call on the police phone system, and she won.

I guess this might be a question I really need to ask a lawyer (or someone who plays on on TV!) for a definitive answer - seems a big of a foggy area.

Fee

The question should be [red]Is it worth trying to do?[/red] not [blue] Can it be done?[/blue]

 

[kmcferrin]

I don't think that's all from the Human Rights Act. Of the quoted info:

Article 8 provides that everyone has 'the right to respect for his private and family life, his home and his correspondence'. There is a clear risk that monitoring an employee's private telephone calls or emails in the workplace could be a breach of this right. Similarly, the imposition of unreasonable mandatory dress codes or drug testing at work and the use of CCTV data may be an infringment.

The only part that appears to be directly taken from the act iteself is:

'the right to respect for his private and family life, his home and his correspondence'

The rest is commentary added by a third party based on their interpretation. Unfortunately, I haven't read the act, so it's hard to say anything definite. However, the actual quoted section isn't specifically speaking to the work environment, but merely in general terms. How it applies to work environments is up to people who have more legal training than I (and I am not a lawyer), but I suspect that it would be possible for a company to cover themselves if they clearly established that there is no expectation of privacy in communications when using company resources. So if the employee is told going into it that all communications on company phones and computers is monitored, and that personal communications are not permitted using company resources, then they probably would be OK since the user wouldn't be using company resources for private matters, and if they did then they would be doing so with the full knowledge that the communication would no longer be private. The distinction is akin to communicating with someone in a crowded room. If you whisper something into their ear, you would have an expectation of privacy whereas if you shouted it you would not. I should think that it's up the individual to choose communications media and methods that are suitable to maintaining privacy.

 

[rosieb]

Fee - our (in-house) legal beagles' interpretation of this is that all staff should have the right to use the organisation's email and telephone for private use. Where a cost is incurred, ie out-going telephone, they should re-imburse the organisation. Usage should not interfere with their work. (IE - spending all day on email to their mates is not acceptable).

Also, whilst they are permitted reasonable use of the organisation's email, they are not permitted to use any web-based email (eg hotmail) or IM, for security reasons.

I strongly suspect that you organisation's "waive all rights to privacy in anything they create, store, send or receive on the Company’s computer systems" would contravene the Act. I don't think that a corporate contract can over-ride European law.

Rosie
"It doesn't matter how beautiful your theory is, it doesn't matter how smart you are. If it doesn't agree with experiment, it's wrong." Richard Feynman

 

[franklin97355]

according to this site

http://www.yourrights.org.uk/your-r...le-8-the-right-to-respect-for-private-a.shtml

the article applys to the "State" and not individuals

The answer is "42"

 

[lionelhill]

It's easy to get in a bit of a panic about questions like this, but the law is rarely applied with complete stupidity.

The big question isn't whether something is illegal, it's what the courts are likely to do about it. With the young lady who put her feet on a train seat a couple of weeks ago, there was no doubt she was technically guilty, but the court were thoroughly unamused with the prosecution and let her off. And rightly so; any clear-thinking human would agree.

So what would the courts do about this one?

My guess (purely a guess) is that if you're doing something highly illegal or immoral with e-mail, don't expect privacy laws to rescue you. Even if you win your case, it's going to be difficult to find a new employer after you've been advertised all over the pages of the Daily Mail.

On the other hand, if your employer turns out to be a power freak who gets gratification out of looking at party pictures of your friends from e-mails, then a court is unlikely to treat him with much sensitivity (and nor, again, is the Daily Mail).

The best test on any of these things isn't "is it illegal?" The best test is "if the public at large, including all my friends, found out what I am doing, how would they/I feel about it?" This is a very real test since bad public opinion can harm a company more than a big fine, and loss of self-respect can destroy a private life as effectively as anything a court can do.

This test also applies equally to employees using e-mail and employers monitoring it.

 

[jet042]

Lionelhill, I think you've hit the core of the argument there. You've also changed it from one of legality to one of ethics, which frequently have a large disconnect. Star for you.

 

[Welshbird]

Lionelhill, I agree with Jet042 - have one from me too. You just hit on the crux of it all.

Fee

The question should be [red]Is it worth trying to do?[/red] not [blue] Can it be done?[/blue]

 

[mattKnight]

Fee,

There is even UK precedent to support Article 8

http://www.theregister.co.uk/2007/04/05/monitoring_breached_human_rights/

Take Care

Matt
If at first you don't succeed, skydiving is not for you.

 

[Welshbird]

Thanks Matt - but I think my situation is slightly different.
Our company policy states that when we begin employment we automatically waive all right to privacy, and it is that which concerns me.

Fee

The question should be [red]Is it worth trying to do?[/red] not [blue] Can it be done?[/blue]

 

[aarenot]

This company policy put in writing is not neccessarily going to be considered a contract, and therefore may not even be considered by a court. Simply because the firm writes a policy, distributes it, publishes it, and even coerces you to sign a sheet of paper that says you agree to the terms on the full document it refers to does not make the signature neccessarily binding in a court of law.