A private matter

A raft of new legislation dealing with data protection, the regulation of employers' investigatory powers and human rights has had an effect on employer and employee rights. There are three areas where employers must take on board changes to privacy-related rights.“Pre-employment selection`Employers can face discrimination claims on the basis of sex, race and disability when advertising a position. Data protection issues can also arise in the recruitment process. After the EC Equal Treatment Directive is implemented in the UK, discrimination on the grounds of age, sexual orientation and/or religion will also be unlawful.`Selection tests should be carefully analysed to check for discrimination. For example, written tests may discriminate against ethnic groups, personality tests may discriminate against particular cultures and the way in which tests are conducted may require reasonable adjustments to cater for disabled applicants. On medical testing, employers should be wary of unnecessarily invading the employee's privacy. An employer should also obtain the applicant's consent both to carry out the test and process the results. If the tests show a disability, the employer should be wary of its obligations under the Disability Discrimination Act 1995.`The Data Protection Act 1998 (DPA) applies to application forms and requires that the questions must be relevant for the purposes of filling the vacancy. Consent must be obtained from the applicant for the use of personal information that is obtained through the application procedure and, in the future, limitations may also be imposed on how long the information may be kept once the position has been filled. There are also data protection ramifications if personal information is likely to be transferred outside the European Economic Area.`Employers often request that applicants obtain a record of their unspent and spent convictions – enforced subject access – under the DPA. However, when Part V of the Police Act 1997 comes in, possibly this year, such detailed reports will be accessible only by employers in sensitive sectors (such as in care homes, childcare, the police service, and the legal, accountancy and medical professions). Otherwise, employers will be limited to obtaining information relating to unspent convictions and, if the employer requests that an applicant makes an enforced subject access application to provide details of spent convictions, they will be guilty of a criminal offence.“Email and internet surveillance`Since the Regulation of Investigatory Powers Act 2000, the basic legal position is that an employer may monitor employees' email and internet use provided that the employer has reasonable grounds to believe that both parties to a communication have consented. Generally it is not practicable for employers to obtain consent from the recipient of emails.`An employer may monitor without consent if the interception is for “lawful purposes” as defined in the Lawful Business Practice Regulations. Lawful purposes include monitoring for the purposes of detecting unauthorised use of the system, such as downloading of pornography, or to ensure the effective operation of the system, such as virus checks or for “quality control” purposes, including monitoring for staff training. Also, the employer should make all reasonable efforts to inform employees that their email and internet use may be monitored. Employers are advised to publish a policy on email and internet use and make it clear in that policy that the employer may monitor email and internet use to ensure that systems have been used for proper purposes.`Monitoring email and internet use also raises data protection issues. There are discrepancies between the scope for monitoring permitted in the draft code of practice on data protection and the wider approach taken by the regulations. It is hoped that, after the recent consultation period, the information commissioner (previously known as the data protection commissioner) will address the question of how the different areas of legislation should be read together. In the meantime, employers will be acting lawfully in monitoring as long as their activities comply with the regulations, even though this may not be permitted under the draft code.`Email and internet surveillance may uncover unauthorised use of the system by employees and employers will have to consider implementing the disciplinary procedure in these circumstances. It is advisable for disciplinary and email/ internet policies to state expressly that circulation of inappropriate material constitutes misconduct (and possibly gross misconduct) so employees can be left in no doubt about the consequences of such actions.`Drugs and alcohol testing`Advising employers on the introduction of and operation of policies to deal with substance abuse, predominantly the effects of alcohol and drug use, has become increasingly common.`Bearing in mind the general and specific obligations of employers to create a safe workplace, many organisations have had to come to terms with the commercial imperative as to whether it is justifiable to introduce an alcohol and drugs policy with an associated testing regime. Such policies may include specific provisions for offering assistance to employees who are suffering from substance abuse, as well as reserving a specific contractual right to test or screen employees at various points in their career.`Modern drug and alcohol policies often dovetail closely with an employer's disciplinary procedure to ensure that serious examples of misuse or a failure to comply with treatment regimes will result in disciplinary action being taken. As a result, many employers have expressed a concern that the introduction of the Human Rights Act 1998 (HRA) at the end of last year will undermine their attempts to tackle substance abuse in the workplace.`The HRA will have an indirect effect on private companies undertaking private business in the market. It will not prevent an employer from introducing or operating an effective drug or alcohol policy, but employers need to be mindful of its provisions. Employees will not have a free-standing right to utilise the provisions of the HRA to bring claims, but they will be able to tag on to other claims, principally unfair and wrongful dismissal, and allegations that their fundamental human rights have been undermined.`In particular, Article 8 of the European Convention of Human Rights, the right to respect for a private and family life, home and correspondence, is particularly important and relevant. The right to a private life as encapsulated in the HRA is not absolute. There are qualifications to the right to respect for a private life which enable employers to continue screening and testing for drugs and alcohol.`Ordinarily, a drugs and alcohol policy which is intended to promote overall the health of individual employees, as well as the safety of the workforce and third parties, will be a proportionate interference to an individual's right for privacy.`Employment tribunals have long penalised employers who resort to dismissing substance abusers where alternatives to such a sanction exist. This approach, which has manifested itself through the unfair and wrongful dismissal jurisdiction of the tribunal, is likely to be developed in potentially more sophisticated ways now that employees can invoke the HRA. All employers should consider exactly how far they should go if they wish to test for drugs and alcohol misuse and to what extent offering assistance to such employees is the best way to manage their obligations and avoid potential liabilities.`In short, employers are advised to audit their recruitment and selection procedures and to examine their practice in relation to workplace monitoring to ensure that they do not fall foul of the law and damage workplace relations.“Martin Palmer, Victoria Vallely and Yoness Blackmore are members of Allen & Overy's workplace surveillance group