Written by
Ian Dawson

Published
08 Aug 2016

A guide to privacy at work

08 Aug 2016 • by Ian Dawson

A recent European Court of Human Rights (ECHR) decision ruled that an employer can monitor an employee’s private online communications.  Where does this leave the law for employers and employees regarding private communications?

A key point to note is that a number of headlines about the judgment misinterpret what the ECHR decided.  It would be naive for employers to think that the decision gives them free reign to monitor personal communications of employees.  The decision recognised an employee’s right to privacy, in the context of Human Rights, but on the facts held that the rights were not breached in this particular case.

For employees, they can take some comfort from the fact that there is still a reasonable expectation of privacy regarding personal communications.

In addition, monitoring of personal communications is also subject to data protection principles and safeguards.  This includes restrictions on the use and monitoring of sensitive data, for example relating to an employee’s health or sex life.

Employers would still be well advised to have in place clear policies and guidelines as to the monitoring of personal communications.  Potential grey areas can arise, given the use of phones and computer equipment for both personal and business use.  

To help give clarity and protection to employers, they should be open as to the fact that they reserve the right, both in any contractual policies but also in the employment contract, to monitor personal communications.  However, this still needs to be used appropriately.  For example, it is easier to justify monitoring if there is genuine concern about the employee’s activities  and that these are not work related and/or may show potentially more serious issues, such as criminal activities, which would justifying monitoring in certain situations.

The ECHR may review the judgment.  Alternatively, it remains to be seen if changes will be proposed to domestic legislation and whether the national courts will take the view that either employers do have a wider right to monitor, or that a higher standard will apply in domestic law to retain the existing protection for employees.

National Living Wage (NLW)

The NLW will be effective from 1 April 2016 and will introduce an increased minimum hourly rate for all workers aged 25 and over and who are not in the first year of apprenticeship.  The increase is to the current hourly rate of £6.70 by 50p (£7.20 per hour) and supports the government’s vision of a higher wage.

Response to the NLW appears to be positive from both employers and employees, with employers indicating that this will allow them to look at ways of increasing and improving productivity.

Cynics have expressed an opinion that this will only mean alternative ways of reducing the wage bill with redundancies and employers looking at dismissals for those 25 or above.

Such action by unscrupulous employers could leave them faced with claims for unfair dismissal, even if redundancy is used as a reason for dismissal.  This could particularly be the case where there has not been a fair and objective redundancy process or proper steps have not been made to try and avoid redundancies.  In addition, there could be risks of claims for age discrimination if those selected for redundancy can link their selection with issues related to their age, including the reluctance of the employer to implement the NLW.

It is also important to remember, that existing safeguards that relate to the national minimum wage will still apply in connection with the NLW.  The reference period for determination as to whether the NLW has been paid, will be a month or a shorter period if that is used to determine how the pay is calculated.  For example, for employees paid weekly, the reference period will be a week.

Employers should also be aware of the obligations which will remain on them to keep appropriate records.  Enforcement will be through HMRC and there can be civil and criminal penalties for those employees who don’t comply.  Given the intention of the government, and what the NLW is trying to promote, it cannot be ruled out that there will be more stringent enforcement action taken.  Criminal liabilities can arise where there have been failures to pay the NLW or failures to keep accurate records or to falsify payment records.

There will still need to be a careful assessment of how an employee’s pay has been calculated.

Commentaries suggest that retail and hospitality industries may be significantly affected.  Additionally, employers in those industries will need to take into account what can and cannot be calculated when assessing the NLW.  For example, generally bonus and commission can be taken into account particularly where they are contractual, but tips and gratuities cannot, even if they are paid by the employer directly to the employee.

There may well be an increase in the regulatory activity and employers would be well advised to take steps now to plan for the changes.  This should include checking who will be eligible for the NLW, varying contracts and policies as appropriate, informing staff of the new rates and training payroll staff in implementing the new procedures.

Zero Hour Contracts

From 11 January 2016, for the first time there has been some real protection introduced for zero hour contract workers.

There has been much debate about the use of zero hour contracts and how they can be used by employers to make life difficult for those on zero hour contracts.

Protection has now been put in place so that any dismissal would be automatically unfair, if the principal reason is that the employee breaches any clause in a contract preventing the employee from working for another employer.  There is no qualifying period required to bring an unfair dismissal claim on this basis.  It is also unlawful to submit a zero hour worker (which is wider than just an employee) to detriments if they work for another employer, even if there is an express provision in the contract preventing them from working for anyone else.

To help give clarity and protection to employers, they should be open as to the fact that they reserve the right, both in any contractual policies but also in the employment contract, to monitor personal communications.  However, this still needs to be used appropriately.  For example, it is easier to justify monitoring if there is genuine concern about the employee’s activities  and that these are not work related and/or may show potentially more serious issues, such as criminal activities, which would justifying monitoring in certain situations.

The ECHR may review the judgment.  Alternatively, it remains to be seen if changes will be proposed to domestic legislation and whether the national courts will take the view that either employers do have a wider right to monitor, or that a higher standard will apply in domestic law to retain the existing protection for employees.

There will still need to be a careful assessment of how an employee’s pay has been calculated.

Commentaries suggest that retail and hospitality industries may be significantly affected.  Additionally, employers in those industries will need to take into account what can and cannot be calculated when assessing the NLW.  For example, generally bonus and commission can be taken into account particularly where they are contractual, but tips and gratuities cannot, even if they are paid by the employer directly to the employee.

There may well be an increase in the regulatory activity and employers would be well advised to take steps now to plan for the changes.  This should include checking who will be eligible for the NLW, varying contracts and policies as appropriate, informing staff of the new rates and training payroll staff in implementing the new procedures.