It’s none of your business!

Privacy in the workplace.

With the news full of super injunctions, phone tapping scandals and leaked data, people are becoming more aware of privacy issues. Longer working hours and the convenience of the internet mean most of us mix our private and work lives, at least a little. This month we’re looking at some do’s and don’ts of monitoring employees.

Legally, monitoring employee’s actions can be risky. You need to have a good reason for doing it, and there are some places (such as toilets and showers) where monitoring is rarely acceptable. Like most employment law issues, you need to make sure any action you take is reasonable.

Introducing monitoring
It may be that you already have monitoring in place. If not, introducing it has its own particular problems, as it is likely to be a change in terms and conditions. Ideally, you need to consult with your employees and get their agreement to any monitoring. You should also have clear written policies on monitoring and make sure employees are aware of them.

Common types of monitoring
These include vehicle tracking, email, phone and internet monitoring. Some employers also block certain sites such as hotmail or facebook, so they can’t be accessed from work computers. Less common is drug and alcohol screening, though some employers do conduct such monitoring.

What you collect and how you use it
It isn’t just collecting the information that is risky; you need to be careful how you use it as well. Employers should only collect information they need - unless you are supplying footwear for employees, you probably don’t need to know their shoe size. Information should only be used for the purpose for which it was collected, should be kept secure and should only be accessed on a ‘need to know’ basis. For example, there is unlikely to be a reason why a junior colleague needs access to their manager’s personnel file. Remember, employees usually have a right to see information you keep about them.

The Data Protection Act sets out how you should treat personal information and ACAS have guidance specifically about employees and data protection on their website.

Right to a private and family life
The Human Rights Act states that everyone has a right to a private and family life. Any decision made by a court has to follow the principals of the Human Rights Act.

Employees are entitled to some privacy in the workplace and you need to take care not to cross the line into invasion of that privacy.

Practical Issues
Employee privacy is a touchy subject and you need to think about how monitoring may effect employee morale. You may also need additional resources to deal with any information you collect. For example, if you are tracking vehicles to keep an eye on fuel consumption and driving routes, someone is going to have to look at the data and analyze it to get you the information you need.

In addition to this ezine, we are delighted to introduce the LawExpress Podcast - Listen to our regular updates. Our aim is to keep you informed and current on the topical issues that affect the people around you

For anyone who may have missed it, the Equality Act finally came into force on 1st October 2010.

HELPING YOU TO UNDERSTAND
The Act for the most part restates the existing legal position as we know it and is not likely to involve dramatic practical changes in practice for most employers.

The long awaited legislation brings together a number of aspects of the law relating to discrimination issues, extends some existing provisions and creates some new ones. Acas, the conciliation service, have published a helpful booklet on the matter with a very useful chart detailing the existing and new provisions - view the chart.

COMPROMISE AND EQUALITY
It has already been identified that there may be some ambiguity in the drafting of section 147 of the Equality Act which may impact on the enforceability of compromise agreements signed after 1st October 2010.

The Law Society has commented:

“The Law Society is aware that there is some ambiguity in the drafting of section 147 of the Equality Act which is likely to have an effect on the use and effectiveness of compromise agreements made under the Act,” said a statement from the body. “The way this section is currently drafted suggests that a solicitor who was instructed by the employee prior to the production of the final agreement for consideration will be precluded from acting any further.”

An urgent review of the section is currently being undertaken and the outcome will be posted as soon as it is available.

EQUALITY AND THE FUTURE
The organisation largely responsible for the implementation of the Equality Act, the Equality and Human Rights Commission (EHRC) is itself facing a potential reduction in size. As part of the government strategy to reduce overheads and impose tighter budgetary control, there are reports of the need to “substantially streamline” the organisation.

Whilst core functions will be retained there may be a need to for other functions to pass to other departments or the private sector. The final outcome is awaited after a period of consultation.

We receive a number of requests for advice on issues concerning driving and motoring matters generally. Here we take the opportunity to highlight the five most popular questions.

1. I have heard about the Traffic Enforcement Centre, what is this and where can I find it?
The Traffic Enforcement Centre (your local county court) is used when a penalty notice for a parking offence remains unpaid and no appeal against the issue of the notice has been made. In this case the Local Authority will register a charge certificate for the full outstanding charge and other penalties. Once registered there are only 36 days to appeal, by lodging a statutory declaration, against the charge and the appeal can only be made on one of three very limited grounds. There is a procedure for filing the statutory declaration out of time, when the application will then initially be determined by the relevant local authority or a senior court officer.

If your appeal is successful the charges may be set aside. However, very often there are extra costs involved in this process and our best advice is at all times to make sure that any penalty notices are paid or appealed against when received. Once the local authority has applied for a warrant they may clamp and tow away your vehicle.

2. I parked in a pub car park and was clamped; is this legal?
In order for the wheel clamp to be legal you have breached any parking restrictions notified to you by the owner of the pub. This is usually done by notice in the parking area either preventing parking or limiting the time you can park and the penalty (wheel clamp) that will be applied.

However things are going to change. The Freedom Bill which is due to receive Royal Assent this month (we hope) will outlaw wheel clampers on private land. However we expect this to be replaced by parking tickets which will look very much like the real thing; you have been warned!

3. I have received a notice for speeding but I wasn’t driving; what can I do?
If your vehicle has been observed committing a road traffic offence, a notice of intended prosecution must be served on the registered keeper or driver within 14 days of the offence, if the driver is not stopped at the scene. The notice of intended prosecution places an obligation on the registered keeper to identify the driver of the vehicle at the relevant time. If you do not provide a name of the driver then it is very likely you will be summonsed for the offence of failing to identify under s.172 Road traffic Act which carries a maximum fine of £1000 and 6 penalty points.

There is a defence to this offence if you made all reasonable efforts to establish who was driving, but you are likely to be summons in any event and will need to prove that you made all reasonable enquiries to the court. The response “it was either myself or my partner” is unlikely to succeed, furthermore if you nominate a foreign driver, enquires are likely to be made re the date of arrival in the country and whether the individual was insured.

4. I have been caught drink driving, just over the limit, this is my first offence what will happen. I could lose my job over this; will the court take that into consideration?
The penalties for drink driving are very strict and any small amount over the limit will mean a ban from driving for at least 12 months is obligatory. There will also be a fine imposed and penalty points will be added to your licence. These penalties can be increased if the amount that you are over the limit is substantial.

Whilst it is possible to plead that you should retain your licence, the possible loss of a job is not generally a sufficient reason for the court to allow you to keep the licence.

The court may offer you the opportunity to take part in a drink/drive rehabilitation course which on successful completion can reduce the period of disqualification by up to 25%

5. I have been living here for a year and have been driving with my licence from my home country, can I do this?
The rules concerning licences can be complex. Generally if you are within the EU it is possible to drive in this country using that licence, for 3 years. If you are outside of the EU the relevant time is 1 year.

It is always important to check this as if you have the wrong licence your insurance could be invalid in the event of an accident.