Using IT at work

By Arj Arul of Mills and Bann Solicitors

The use of information technology (IT) has substantially increased in the workplace in recent years and employers have a huge task keeping tabs on things. The misuse of IT facilities such as email or the internet can cause problems with systems, clients and other employees, potentially leading to loss of business or even claims for discrimination or defamation, to name but a few.

The extent of IT use can vary by employer and policies should be clear and comprehensive, covering all potential issues – for example, beyond desktop computers consider the use of online or home based access, personal data devices and mobiles telephones. Disciplinary action should be used proportionately to enforce policies. The recent case of a teacher alleged to have spent up to four hours per day (some during class time) on social networking and auction websites highlights the potential problem. In that case, dismissal may have been an option however this is not always the case and prevention is often better than cure.

In some cases an employer will want to monitor employees behaviour to establish whether polices are being infringed. Employers should be cautious, not only about data protection legislation, but also other regulations and guidance, for example, from the Information Commissioner. The purpose of data protection legislation is to allow employees access to data held by data controllers however it extends to monitoring at work. The Information Commissioner gives recommendations in relation to both systematic and occasional monitoring of employees, covering the monitoring of electronic communications, audio or video monitoring and even in-vehicle monitoring. The guidance is not legally binding but can raise inferences over whether data protection legislation has been complied with and in particular whether monitoring is necessary and proportionate.

In serious cases it may be necessary to intercept communications, such as opening emails before they are received or listening in on telephone calls as they take place. If this is done through the postal system or a public telephone system then it is likely to be unlawful. If the employee has consented then proportionate monitoring may be permissible although inevitably giving advance notice is not always practical. There are limited circumstances where communications can be intercepted without consent, for example where it is necessary to ensure standards of service, such as in call centres. Even in this situation employees should be placed on notice to the possibility of call monitoring which can in itself act as a deterrent to misuse. The Information Commissioner recommends that employers consider whether monitoring is necessary and that they carry out an impact assessment to ensure that the advantage to the business outweighs the intrusion into employee privacy. In addition, the guidance recommends informing employees in advance save in the most exceptional circumstances, such as in the detection of crime or serious misconduct.

Employee monitoring should only be carried out where there is good cause and only to the extent that is necessary. In all cases, especially those involving extended monitoring or complex data collection, or with public sector employees when human rights issues may be more relevant, impact assessments should be carried out. When in doubt specialist advice should always be sought.

Arj Arul can be contacted at Mills and Bann on 01635521545 or by email: arj@mblaw.co.uk.