SURVEILLANCE AND PRIVACY AT WORK BY MICHAEL FORD
Michael Ford is a barrister at Doughty Street Chambers specialising in labour law, public law and civil liberties. A former lecturer at the universities of Manchester and London, he has written extensively on employment issues. The author would like to thank the publications sub-committee of the Institute of Employment Rights – and Bob Simpson, Mary Stacey and Jim Mortimer in particular – for their valuable and detailed suggestions and corrections; Sarah Leverton and Keir Starmer for their helpful comments; and the staff at the ILO office in London who responded with alacrity to persistent phone calls. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the author. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.
ISBN 1 873271 66 2 December 1998 published by the Institute of Employment Rights 177 Abbeville Road London SW4 9RL 0171 498 6919 e-mail ier@gn.apc.org designed by Megan Dobney printed by Upstream (TU) 0171 358 1344 £6.50 for trade unions and students £20 others THE
INSTITUTE OF
EMPLOYMENT RIGHTS
surveillance and privacy at work
executive summary
by Michael Ford
i
Contents executive summary
1
CHAPTER 1
introduction
3
CHAPTER 2
the problem defined what is surveillance? surveillance today what interests does surveillance serve or harm privacy autonomy
7 7 10 13 15 16
CHAPTER 3
the protection of private interests at work life outside work selection victimisation during work dismissal private communications physical integrity: alcohol, drug and other testing and searches common law statute health information video surveillance conclusion
19 20 20 22 22 24 25 26 27 28 29 30
CHAPTER 4
surveillance and privacy at work
surveillance of workers: the Data Protection Act 1998
ii
surveillance protection outside the Act aims of the Data Protection Act summary of the Act information caught by the Act personal data sensitive personal data exemptions general duties on data controllers processing personal data processing sensitive personal data
31 31 32 33 34 34 34 35 35 36 37
individual rights rights of access damages references health records criminal records sanctions and enforcement the effect of the Act
38 38 39 39 40 40 40 41
CHAPTER 5
incorporation of the ECHR and future regulation the protection of privacy under the ECHR private life justification for interference extension to the work other relevant Articles of the ECHR incorporation of the ECHR challenges in the future
43 43 44 44 45 45 46 47
CHAPTER 6
the limits of Article 8 and future legislation promoting joint regulation substantive legislation private communications video surveillance testing other areas conclusion
50 52 53 54 54 54 55 55
endnotes
57
recent publications
64
ECtHR ECHR EU ILO OECD
European Court of Human Rights European Convention on Human Rights European Union International Labour Organisation Organisation for Economic Co-operation and Development
contents
abbreviations
iii
executive summary
I Surveillance is almost as old as work itself, but new techniques represent a growing threat of a different kind to workers and unions. The current fashionable rhetoric of employee participation and involvement is not matched by the empirical reality of many workplaces, characterised by forms of surveillance whose persistent and intrusive nature was unimaginable in the recent past. I Although some forms of surveillance may serve legitimate interests such as the protection of health and safety, many others harm important worker interests. In some cases surveillance itself damages worker health. More typically, new forms of surveillance pose a threat to workers’ privacy and autonomy. It is to those two values that workers should turn as the principal justifications for resistance and for new legislation.
I The Data Protection Act 1998 will, however, regulate the use and disclosure of wide categories of information held on individuals. It applies equally to information about workers held by employers. Extending beyond the protection of information concerned with private facts, the Act offers an important opportunity for workers and unions to discover what information employers are collecting and what use they are making of it and, in turn, to seek to control the kind of information which is gathered and the purposes for which it is disclosed or used.
executive summary
I At present UK law offers little protection against the infringement of many aspects of privacy – conceived as life outside work, physical integrity, matters relevant to individuals’ health and persistent filming – in the workplace. The existing legal position is considered in detail.
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I Following the incorporation of the European Convention on Human Rights – and the right to privacy in article 8 in particular – through the Human Rights Act 1998, the courts and tribunals will need to forge new legal means of protecting against infringements of privacy including infringements related to work and workers. But it would be naïve to hope that recognition of a right to privacy will do much to arrest or reverse the spread and intensification of new forms of surveillance in the workplace.
surveillance and privacy at work
I Nor can legislation easily regulate the many forms of surveillance, serving different ends and harming different interests in different workplaces. Rather than hoping for laws which prohibit some kinds of surveillance altogether, it is suggested that a better strategy for unions and workers is to press for legal rights to information, consultation and enforced bargaining about surveillance. Backed by those rights, collective bargaining and other forms of joint regulation offer the most promising method of controlling surveillance at work; some suggestions for the content of such bargains and agreements are put forward. In the long term, it is argued, surveillance at work can only be resisted by precisely that worker autonomy which surveillance tends to undermine.
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WHAT IS THE INSTITUTE? The Institute of Employment Rights was launched on 28th February 1989. As a labour law “think tank”, supported by the trade union movement its purpose is to provide research, ideas and detailed argument. In 1994 the Institute was granted charitable status. The Institute has attracted wide and distinguished support. Among the membership are John Hendy QC, Professor Keith Ewing, Lord McCarthy, Sir Peter Pain, and the general secretaries of Britain’s largest trade unions. The results of the work of the Institute are published in papers and booklets. It also provides short articles, free of legal jargon, for trade union journals and other publications. The Institute provides tools of analysis and debate for the trade union movement in the area of labour law. We are not a campaigning organisation. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, it recognises that law has a part to play in influencing the employment relationship, both individually and collectively. Funding is from various sources, including subscriptions which entitle subscribers to a copy of all our new publications. If you are interested in subscribing or would like to know more about the Institute, then contact us at 177 Abbeville Road, London SW4 9RL, 0171 498 6919.
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