An employeeís expectation of privacy while surfing the net.

Article written by Dr Peter Jepson

Published in the New Law Journal [1999] 1673.

Email: law@peterjepson.com

The employment tribunal case of Franxhi v Focus Management Consultants Ltd[f1] has received much publicity in the computer journals[f2], since it demonstrates that surfing the net while at work can damage your job prospects. In Franxhi, the tribunal rejected the applicantís claim that she was dismissed because of pregnancy, agreeing with the employer that extensive use of the Internet for booking a private holiday was an abuse that justified dismissal.

This article does not seek to undermine the ratio that an employee can be dismissed for abusive use of the company computer, telephone etc, but it does question the validity of an employerís use of computer technology to monitor staff usage of the telephone network and the Internet. In Franxhi, it is reported[f2] that the employer submitted a log revealing 150 searches made during work hours and this article examines whether such monitoring could establish the potential for a breach[f3] of Article 8 of the European Convention on Human Rights, which states that "Everyone has a right to private and family life, his home and his correspondence."

The case of Halford v UK[f4] concerned the interception of the Assistant Chief Constableís office telephone by the Merseyside Police. Ms Halford complained to the European Court of Human Rights that personal calls were being intercepted, and monitored, and the court upheld her complaint that this amounted to an abuse of Article 8. A key unanimous finding, was that the notion of "private life" and "correspondence" might cover calls made from business premises, as well as the home. Indeed, it was held that Ms Halford was entitled to an expectation of privacy, with no evidence of any warning having been given that calls made on the internal telephone system would be liable to interception. The British Government recognised, and the European Court found, that domestic law does not provide for the regulation of any interception of calls made on telecommunications outside of the public network. Thus the interception was not "in accordance with the law", with the domestic law not providing adequate protection to Ms Halford with respect to her right to respect for her private life and correspondence.

The government response to the defeat in the European Court of Human Rights, can be found in its consultation paper ëInterception of Communication in the United Kingdomí[f5]. The proposal is to implement the Halford Judgement by extending the interception regime to all telecommunications networks, regardless of whether they are licensed as public or not. This will include Public Telecommunication Providers, Internet Service Providers and International Simple Resale Operators, covering business telecommunications services ranging from basic networks of a few lines found within a small office, to large networks linking offices in both the public and private sectors. This will encompass all mail handling and delivery systems, including parcel and courier services. The principle being that no matter how a communication is sent, by telephone, fax, email or letter, it should all be treated in the same way by the law. Potentially, any interception can fall within the scope of Article 8 and a single framework for all forms of lawful interception will mean that each application will follow the same laid down procedure and will be judged against a single set of criteria, thus ensuring that any intrusive activity is used only when justified.

It is not proposed that the warranted interception regime will affect the recording or monitoring of communications when it is done in the course of lawful business practice and where the system operator has taken reasonable steps to inform the parties to the communication that it may occur.

With this in mind, Oftel have issued new guidance[f6] to companies covering their responsibilities over the recording of phone calls for business purposes[f7]. In this circular, Oftel recognised the growing practice of the recording or monitoring of telephone conversations at the workplace in recent years. Indeed, with a significant increase in the amount of business done by telephone and the need to train and supervise staff to achieve quality targets and to have a record of what was said in the event of a dispute, the widespread monitoring and recording of calls is inevitable.

The new advice, in light of the Halford Judgement, focuses on "The reasonable expectation of privacy that employees are entitled to in the workplace ñ an entitlement that is conferred by the European Convention on Human Rights that is going to be incorporated into UK law by the Human Rights Act 1998". Accordingly, it may not therefore be sufficient simply to warn employees that their phone calls at work may be recorded or monitored in order to remove the expectation of privacy. This is because, in the words of the Oftel circular, "It is not reasonable to assume that people at work will never make or receive calls touching on personal or domestic matters."

Oftel suggest that one way of ensuring that employees can make or receive personal calls that will not be recorded, would be for an employer to provide adequate access to telephones (possibly payphones) in the workplace, with an undertaking that they will not be subject to any form of recording or monitoring. In addition, external callers also need to be notified of the possibility that calls may be recorded or monitored.

This principle of informing employees of the monitoring of calls, which was a central feature of Halford, is indeed the crux of the matter. Returning back to the case of Franxhi v Focus Management Consultants Ltd, it is implicit in the judgement that Ms Franxhi was not aware that her use of the Internet was being monitored. This begs the question, would any reasonable employer have dismissed in these circumstances? Issues relating to an abuse of human rights were not debated within the case, but if they had been it would have been interesting to see how the employment tribunal responded in light of the developing obligation to take such issues into account when determining cases. Naturally, as a private limited company, Focus Management is not currently bound by the ECHR, but it is clear that employers should in future operate in accord with guidelines issued by Oftel with regards to the monitoring of employeesí telephone calls and correspondence.

It can surely be expected that employers, who disregard Oftel guidelines, will in future not be seen to have been acting reasonably should they dismiss on the basis of the secretive logging or monitoring of staff telephone usage. Indeed, the Oftel guidelines may have the effect of circumventing the ratio established in the Franxhi case. The new guidelines are clear, employers must notify staff that they are recording their telephone/computer usage. Once they have notified staff of such monitoring, they would be entitled to dismiss should the records display staff abuse of the network ñ that is provided there is a non-monitored telephone for private use. On the basis of the Oftel guidelines, this legitimate expectation could apply not just to telephone calls but also ñ in the circumstances of a hi-tech office where electronic mail is commonplace ñ to email. Accordingly, an employer could even be obliged to provide not just a non-monitored telephone but a non-monitored computer (or a personal log on facility that ensures privacy within their office computer) for staff who wish to surf the net for the purposes of the sending and receiving of personal emails.

1st Sept 1999.

Footnotes:

1 Case number 2101862/98.

2 See PC Advisor, Sept 99 at page 34.

3 In Franxhi, the employer was a limited company and not an organ of the state, so a challenge on the basis of Human Rights is not applicable. However, as this article will demonstrate, the government is committed to introducing employee protection legislation in relation to privacy rights and telephone usage. Essentially, this seems to be so as to ensure parity between public and private sector workers as a result of the Halford v UK case.

4 EHRLR 551.

5 Cm paper 4368, June 1999.

6 See Oftel web page - http://www.nds.coi.gov.uk/coi/coipress.nsf/d63cbd4e534a5b8b802567350058dced/89d55ba83acf09c1802567d20051d00b?OpenDocument

7 These guidelines mirror those issued by the Home Office, on the 23rd March 1999, in its circular to all Government Departments and Chief Police officers about the ëInterception of non-public telecommunications networksí (see http://www.homeoffice.gov.uk/circulars/1999/hoc9915.htm ).