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Big brother is listening

Nigel BrainOperations director, OPAL Consultants

How many times have you been at work and used the telephone, email or the internet for personal reasons? Anything from booking your car in for a service to conducting an affair? How would you feel if your employer was listening in or recording you?

Should the employer be able to do this or should the employee have an absolute right to privacy in the workplace?

The Government has decided that the employer should be able to monitor “transmissions by means of a telecommunic- ations system” – phone, email and internet to you and I.

For IFAs, the monitoring of communications is nothing new, so how does the new law, which came into force on October 24, affect you? The first point to note is that, if both parties consent to their “communication” being monitored or recorded, then every-thing is fine.

This is why you should make it clear to your clients by way of warnings in advertising, customer literature or pre-recorded message that the communication may be monitored. You can explain the reasons for doing this which could include training purposes, checking performance, keeping a record of transactions, etc.

If, as appears, nothing has changed, what is all the fuss about? The new law deals with the situation where an employee has not given consent. Before October 24, the law in this area was very unclear and led to the bizarre situation where Mrs Halford (the assistant chief constable of the Merseyside Police) had her phone calls intercepted by her emp-loyer, who was trying to get evidence to use against her in a sex discrimination claim she was bringing against the Merseyside Police. Good to see justice is alive and well in the police force.

Post-October 24, the situation is much clearer (possibly). The Government, in a surprisingly conservative mood, decided that employers are allowed to monitor their emp-loyees&#39 communications irrespective of whe-ther or not the employee has consented. Even if the employee specifically objects, it does not matter.

There is plenty of devil in the detail and, if you are having trouble sleeping at night, the 150 or so pages of the Regulation of Investigatory Powers Act 2000 should sort you out. In time, it will doubtlessly be known as the RIP Act. In fact, the really important stuff is not in the act at all but in statutory instrument number 2699 of 2000. Despite the outcry against this new law, there are some very sound reasons for employers intercepting communications:

If the employee is away on holiday, there may be important email which are being left unanswered.

To ensure employees are not committing the organisation to business contracts when they are not authorised to.

To check for viruses.

To prevent or investigate the sending of offensive messages which could amount to har-assment.

To investigate or prevent abuse of company resources. In order to intercept communications lawfully at work, the employer must have made “all reasonable efforts” to inform the workforce. As a minimum, there should be an interception policy (sounds like a football term) which must have been brought to the attention of all the staff. It would be sensible to include this policy in the contract of employment or staff handbook. The policy should be emailed to all staff or put up on noticeboards. The company should also explain the implications through the normal company communications strategy.

Without wishing to become too technical, the principal circumstances in which emp-loyers can monitor or record telecommunications are:

To establish the existence of facts relevant to the business, for example, keeping record of transactions.

To ascertain compliance with regul-atory or self-regulatory practices or procedures relevant to the business (obviously of major importance to IFAs).

To ascertain or demonstrate standards which are or ought to be achieved by persons using the system, for example, quality control or staff training.

To prevent or detect crime.

To investigate or detect the unauthorised use of telecommunications systems, for example, breaching company rules.

To ensure the effective operation of the system, for example, checking for viruses.

The employer can monitor (but not record) only to determine whether or not the communications are relevant to the business. This covers times where an employee is on holiday or off work through sick.

The IFA employer could use any of the above reasons to justify lawful interception of communications.

I would like to say that that is the end of the matter (complicated as it is). Unfortunately, there is an additional twist. The Data Protection Commissioner has ridden on to the scene determined to uphold employees&#39 rights inthe workplace.

The commissioner has produced a draft code which is sharply at odds with the new law. In effect, the code significantly restricts the circumstances under which employers can intercept communications.

The commissioner is predictably looking at things from a Data Protection Act 1998 point of view and clearly feels any information obtained by interception is covered by the data protection principles.

The thrust of the code is that interception should only take place if there is no alternative and it can be justified.

As a lawyer, I can see plenty of fertile ground for legal argument. As the operations director of a commercial organisation, I am disappointed that two Government dep-artments should produce such conflicting documentation. A function of the Govern-ment must surely be to provide certainty to the business community.

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