Legality of recording Employees' telephone
conversations
The legality of recording phone conversations is
considered here from the employee and employer
perspectives in the work place. The legality
of recording telephone conversations is different in
the following two instances:
- An employee speaking to a customer
- An employee making a private call
It could be considered surveillance if the
employee cannot make a private call from work that
is not recorded. It is therefore recommended that a
line or extension without recording is provided for
private calls.
There are two government organisations that have
a view on this:
Ofcom and the
Information
Commissioner.
Ofcom
At the request of the Home Office on 19th August
1999 Ofcom published new guidance to companies
covering their responsibilities over recording phone
calls for business purposes. Companies and
organisations that routinely record telephone calls
must ensure that their employees are able to make
personal calls that are not also recorded under the
same system. Staff must also be made aware
that personal conversations could be recorded on
their telephone and must have access to a separate
telephone on the premises where they can make and
receive personal calls that are not recorded.
Companies that do not provide this guarantee of
confidentiality could be in breach of Article 8 of
the Europe Convention on Human Rights which covers
people's right to privacy.
The Ofcom guidance is intended to help companies
in the private sector and follows a recent Home
Office circular issued to all public bodies on this
matter. The Home Office circular was issued in
response to the European Court of Human Rights
(ECHR) decision in June 1997 on the case of Halford
vs UK. The essence of the judgement was that
interception of a person's office telephone can
constitute an interference with the right to respect
for their private life established under Article 8
ECHR. Where this is so, the interception must
be carried out in accordance with the law and there
must be an effective remedy. Because UK law
relating to interception does not currently extend
to non-public telephone networks, this form of
interception could not be carried out in accordance
with the law and consequently there was no effective
remedy.
Recording telephone conversations on private
networks:
- This note contains new advice to companies
that provide telephone services to their
employees. This is published at the request of
the Home Office who wish to alert such companies
to a new and important legal interpretation of
their obligations concerning the privacy of
their employees' telephone calls. This advice
is necessary to ensure that the UK is compliant
the European Convention on Human Rights (ECHR)
and a recent ruling in the European Court of
Human Rights (ECHR). If you run a company or
are in any way responsible within your company
or organisation for the provision of telephone
services, you need to read, understand and act
on this new advice. This includes any
organisation that runs its own switchboard, call
centre or other type of private voice network.
- Several factors have contributed to the
growing practice of recording or monitoring
telephone conversations at the work place in
recent years. Within the financial services
sector it has become widely accepted even where
it is not strictly a regulatory requirement.
The growth of call centres has led to a
significant expansion in the amount of business
done by telephone. The need to ensure customer
satisfaction, to train and supervise call centre
staff, to achieve quality targets, to have a
record of what was said in the event of a
subsequent dispute - all these have inevitably
led to widespread monitoring and recording of
calls.
- Where organisations do feel it necessary to
record or monitor calls - for whatever reasons -
the rules under which they do so have been set
by the Privacy of Messages condition of the
major two telecoms class licences - the
Self-Provision (SPL) and Telecommunication
Services (TSL) Licences. The most fundamental
requirement of this condition has been that
every reasonable effort is made to inform all
parties to a telephone conversation that it may
or will be recorded. Annex 1 provides an
extract of the relevant section of the SPL/TSL.
- Although the condition does not specify
precisely how the parties should be informed,
most people will now be aware of how many firms
are conforming to the requirement.
Advertisements that invite calls to a given
number, whether the advert appears as a poster,
on television or radio or in the print media,
frequently carry a message to the effect that
calls may be recorded or monitored for quality.
Why new guidance now?
- Effective as the SPL/TSL rules have been
they were not designed to address the broader
legal issues, pertaining to privacy, that can
arise with recording and monitoring. These
rules effectively regulate how an organisation
should give relevant parties warning about
recording or monitoring, but do not fully
elaborate the privacy rights of employees in the
workplace. The new advice, based on the ECHR
judgement, focuses on the reasonable expectation
of privacy that employees are entitled to in the
workplace - an entitlement conferred by the
European Convention on Human Rights that is
going to be incorporated into UK law by the
Human Rights Act 1998.
- The purpose of the new Home Office guidance
is to clarify what employers need to do now, in
advance of proposed legislative changes, to
comply with the Convention and the lessons
learned from the judgement.
- Under the new advice, the present SPL/TSL
rules remain valid, but the new Home Office
advice is based upon the principle that
"everyone has the right to respect for his
private and family life, his home and his
correspondence" established by the European
Convention on Human Rights. It may not
therefore be sufficient simply to warn employees
that their phone calls at work may be recorded
or monitored in order to remove their
expectation of privacy. This is because it is
not reasonable to assume that people at work
will never make or receive calls touching on
personal and domestic matters. One lesson to be
drawn from the judgement is that there is a
legitimate expectation of privacy for such
calls.
- This means that there has to be some way in
which employees at work can make or receive
personal calls that will not be recorded or
monitored. The circular suggests that one way
of doing this would be for an employer to
provide adequate access to payphones in the
workplace with an undertaking that they will not
be subject to any form of recording or
monitoring. However this is not the only way of
meeting this objective. The key issue is that
there are some lines at work which members of
staff can use for private calls secure in the
confidence that calls made from them will not be
recorded or monitored.
- It is equally important that employees
continue to be informed that recording or
monitoring may take place on official work
phones, as already required by the SPL/TSL. The
main reason for this is that once there has been
a clear explanation that calls made on a
particular system may be recorded or monitored,
anyone making calls on that system is
acknowledging the possibility that those calls
may be recorded or monitored. This can be
interpreted as implied consent and removes the
expectation of privacy. As Ofcom has previously
advised, the necessary information can be given
within a work environment in a number of ways
including terms and conditions of employment,
staff notices, posters and global e-mails.
- External callers also need to be advised of
the possibility of recording or monitoring.
Companies have devised a number of appropriate
ways to meet this requirement, including the use
warnings in advertising and customer literature.
- Although it may not be a strict legal
necessity, it is certainly good practice to
explain to staff why their calls might be
recorded or monitored. Moreover this will offer
a higher degree of protection in the case of a
legal challenge. Employers should develop
guidelines covering their policy on recording
and monitoring in the workplace and the use they
will make of the material derived from it.
- It is however advisable to restrict
recording and monitoring activities to
situations where they are both absolutely
necessary and proportionate to the problem to be
overcome. For example, misuse of office phones
could be detected by an itemised call record,
which is less intrusive than recording or
monitoring of the actual calls.
- In conclusion, the main lessons to be drawn
are that employees in the workplace are entitled
to privacy for any personal calls they may make;
that their expectation of privacy for
work-related calls must be removed by adequate
warning and that where their privacy is affected
it must be for some purpose which is both
reasonable and proportionate.
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