ON June 11 the Information Commissioner published the third part of the Employment Practices Data Protection Code: Monitoring at Work.

The code covers the monitoring of electronic communications, video and audio monitoring, covert monitoring, in-vehicle monitoring and monitoring through information from third parties. As with all parts of this code, it is lengthy and detailed.

The code recognises that the difficulty with monitoring is that it involves a balancing act between employees' rights and the employer's need to run its business. Employers must be able to measure the effectiveness of the staff they pay and must be able to ensure the facilities they provide are used properly.

The code makes it clear that monitoring must be proportionate to the risk it seeks to address. Much is made of 'impact assessments'; where the employer assesses the impact of proposed monitoring on the worker's right to privacy.

Unless covert monitoring is justified - where senior management is satisfied there are grounds for suspecting criminal activity or equivalent - employees should be told when any why monitoring is taking place.

Monitoring of e-mails and Internet usage is of concern to employers who should have in place an electronic communications policy which makes it clear the private use which is permitted and any restrictions on what may be sent or downloaded. Monitoring should take the form of targeted spot checks or audits.

Employees' personal e-mails should be opened only in exceptional circumstances.

Compliance with the code should not only assist employers in complying with the legislation, but should also help to foster a positive working relationship.

- 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: 17/06/2003