Email/Telephone Monitoring

Article 8 of the Human Rights Act 1998 provides a right to respect for private and family life. The scope of "private life" is broad and has been found to extend to an individual's "private space" and telephone calls or emails sent or received by them, in the workplace. However, this appears to conflict directly with the Telecommunications (Lawful Business Practice) Interception of (Communications) Regulations 2000 ("the regulations") which came into force last October.

The regulations are published under the Regulation of Investigatory Powers Act 2000 ("the Act"). They set out circumstances in which an employer is permitted to record or monitor employee's communications, such as telephone calls or emails, without the consent of either the employee or the other party to the communication. The circumstances in which such interceptions are authorised under the regulations include monitoring or recording communications to establish facts relevant to the business, to ensure compliance with regulatory or self- regulatory practices or procedures, to prevent or detect crime and to investigate or detect unauthorised use of telecommunications systems.

Employers are also authorised under the regulations to monitor (but not record) communications in order to determine if they are relevant to the business, for example checking an employee's voicemail and incoming email boxes in their absence from work. The employer is obliged in such circumstances to make all reasonable efforts to inform every person who may use the telecommunications system that communications could be intercepted in this way.

If an employer wants to monitor or record contents of a communication which falls outside the list of categories they will need to establish that they had reasonable grounds to believe that both the sender and the intended recipient of the communication consented to the interception. This may be established if, for example, a provision is inserted into the contract of employment whereby the employee agrees to telephone calls and emails being monitored. In the absence of any such reasonable grounds, the employer risks facing a claim of unlawful interception on a private telecommunication system by the maker or the sender of the call or email under the provisions of the Act. The remedies are an injunction or damages.

In addition, a public sector employer may face additional claims that such interception constitutes an interference with the employee's rights under...