The recent case of Morrison v Avocet Hardware plc dealt with an interesting issue relating to monitoring of telephone calls made at work. In the case, both sides asserted different human rights in support of their claims and it fell to the Employment Appeal Tribunal to determine which was more important.

The case concerned Mr Morrison, a telesales operative who, by definition, spent most of his working day on the phone. Unbeknown to Mr Morrison, his bosses were monitoring his calls.

When they took exception to the contents of one of his calls, they dismissed him for misconduct.

Mr Morrison was none too happy about this and brought an unfair dismissal claim to an employment tribunal. Obviously, the employer defended the claim and in the doing so, tried to rely on the contents of the phone call as justifying its decision.

The tribunal refused to allow it to do so, on the basis that because Mr Morrison had been unaware of the monitoring, the way in which the evidence had been obtained infringed his right to respect for his private life under the Human Rights Act.

Mr Morrison won his case and the employer appealed.

The employment appeal tribunal took the view that it would be unusual for "those engaged in business on the telephone not to be aware that their talk might be monitored".

Although the tribunal accepted the employer's evidence might have been obtained in breach of the Human Rights Act, this did not necessarily lead to the conclusion that it could not be admitted in tribunal proceedings.

The employer, although a Plc, "had human' rights too", in this case the right to a fair trial. Because the contents of the telephone call were crucial to the employer's justification for dismissal, then it had to be admitted into evidence regardless of the method by which it was obtained.

Stephen Elliott is a solicitor in the employment team of North-East law firm Ward Hadaway. He can be contacted on 0191-204 4000 or by email at stephen.elliott@wardhadaway.com

Published: 25/05/2004