Tanya Thompson November 24, 2003
DAVID Russell¡¯s routine is always the same. He arrives at the
office on Monday morning shortly before 9am, pours himself a coffee
and flicks on his computer.
Within seconds, his Liverpool FC screensaver comes into focus
and he checks the team website for reaction to the weekend¡¯s match.
By 9:15am he has sent e-mails to two of his friends who are discussing
the merits of the game, why they suffered another defeat and whether
Emile Heskey should have had a penalty. It¡¯s now 9:30am and, after
checking his voicemail, he gets down to work.
What sounds like a fairly innocuous start to the day for thousands
of office workers up and down the country could have already earned
David the sack. The chances are, his bosses will know exactly
how long he has spent on the internet, which websites he favours
and the exact nature of his correspondence.
Employment lawyers are warning that a little-known code of practice
from the Information Commissioner could erode privacy rights and
reinforce the idea that Big Brother is always watching you. Sending
e-mails to friends, checking football scores or playing any number
of inane computer games could result in a written warning or dismissal.
Before the changes came into force in June, many employers were
cautious about spying on their staff, even if they had genuine
fears about misuse of company time and equipment. But lawyers
now say the code of practice will give managers the green light
for full-scale surveillance operations, to check how much time
is spent on personal e-mails, the length of telephone calls and
what kind of material is being downloaded.
The new impact assessments, sanctioned by the Information Commissioner,
mean employers will only need to justify to themselves that they
have legitimate concerns about staff before they start monitoring
them.
Jim Price, an employment lawyer and partner with Ross Harper
solicitors in Glasgow, believes many workers are unaware they
are spied upon every day. He says: "If the employers only
have to justify surveillance to themselves, it is very subjective.
Is it enough for employers to say they have genuine concerns that
the internet is being abused?
"The employees¡¯ rights could be eroded. It favours the employer.
My concern is that staff could be monitored frequently and they
would never know they were under surveillance."
While most people would agree that anyone downloading pornography
or defrauding the company deserves everything they get, there
is a fear that spying on staff could be extended to whatever the
boss regards as time-wasting. What is clear is that employers
now have access to a bewildering array of technology which is
used to eavesdrop in the workplace. That can range from microscopic
cameras, telephone bugs and clever computer software which scans
for the use of buzzwords to find out exactly what we are looking
at on the internet.
"Employer surveillance is big business and a lot of large
companies are using sophisticated technology against their own
people," says David Christie, an Aberdeen-based solicitor
with Proactive Employment Lawyers. "The bigger the company,
the more likely they are to have some kind of surveillance."
Mr Christie urges both sides to act responsibly, but believes
some unscrupulous employers will take advantage of technology
to spy on their staff.
¡®We have just produced a report which lists everyone who has spent
more than ten hours on the internet in the last month¡¯
"They could say the surveillance is justified when it isn¡¯t
and use the information for other purposes," he explains.
"If a member of staff e-mails his union to complain about
unequal pay, his boss could store that information and use it
at a future date. Six months down the line, he may find he is
the first to be made redundant.
"Employees need to be careful about what they do and what
they say. The best thing is for the company to get a workable
IT policy so everyone knows what is acceptable."
The new employment code recommends a comprehensive assessment,
to see if the company really does have to monitor at all. That
includes checking the benefits against the effect on employees
and seeing how the same benefits could be achieved through less
intrusive methods.
Critics argue that few employers can resist using surveillance
when staff are blissfully unaware they are being watched. The
Data Protection Act can prompt criminal prosecutions and employees
unlawfully monitored can claim damages, but very few cases ever
come to light.
The issue hit the headlines in September when a corruption case
against an Asian police officer collapsed at the Old Bailey.
Ali Dizaei, 41, who was about to start a senior command course
when he was suspended in 2001, was told that charges alleging
he fiddled mileage claims worth ¡ê200 were to be dropped.
Mr Dizaei accused the Metropolitan Police and the Crown Prosecution
Service of "a personal crusade" to destroy his life
and career.
He is pursuing an employment tribunal action alleging racial
discrimination and victimisation. If successful, he can expect
a pay-out of more than ¡ê1 million.
Michael Mansfield, QC, acting for the Iranian-born officer, said
his client had been subjected to "a witch-hunt of Orwellian
proportions" when his phones were tapped and he was followed.
Disciplinary proceedings for e-mail and internet abuse at work
in the previous 12 months exceeded those for dishonesty, violence
and health-and-safety breaches put together. A recent survey suggests
sending pornographic e-mails is one of the three most common causes
for sacking staff - nearly 40 per cent of disciplinary cases resulted
in dismissal.
One IT manager in Edinburgh, who works for a large insurance
company, says a quick phone call can provide him with all the
information he needs about staff who trawl the internet during
company time.
"I can get a breakdown on how long they are spending on
the internet and a check on the length of their phone calls,"
he says. "We have just produced a report which lists everyone
in our department who has spent more than ten hours on the internet
in the last month."
The manager, who chose not to be identified, believes the only
way to ensure fair play is for companies to set out a clear policy,
so that everyone knows where they stand. Some firms have introduced
a zero tolerance policy for all private e-mails.
"Staff are unclear about what is and is not appropriate
in the workplace," he says. "When you have such a grey
area, it is always going to cause problems."
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