Desk detective
Question
I'm sure that when I'm not around my boss has been looking in my desk draws to see what's there. Does he have the right to do this?
Answer
The rights an employer or boss has to monitor their staff are pretty complicated. When monitoring staff a number of laws can apply and these are the Regulation of Investigatory Powers Act, Lawful Business Practice Regulations (LBPR), the Data Protection Act, the Human Rights Act 1998 and the Law of Confidentiality.
These laws allow you to be monitored and give you safeguards against excessive investigation. Under these laws your boss can monitor areas such as e-mail, telephone, fax access to the internet etc. But they also allow you the possibility of getting an injunction to stop the monitoring if it's going too far. If things get too extreme you could even consider resigning and taking a case to an Employment Tribunal for constructive unfair dismissal, but proving a case can be very difficult.
The most important principal of staff monitoring is that you should know it is happening. Your boss should have made it clear what level of monitoring is taking place and what areas of work are being looked at. There is a code of practice, called the Employment Practices Data Protection Code (pdf), which companies should follow when monitoring the activities of their employees. This code sets out examples of how your boss should be behaving, and it might be worth comparing these with what you think your boss is currently doing.
In your particular case though these acts, with the possible exception of the law of confidentiality, don't seem to cover the action being taken by your boss. If it's possible this could be a misunderstanding (maybe your boss was looking for a file?) then you should think about talking to them directly to resolve the problem.
If, however, you still feel unhappy about what's going on then there are a number of ways forward:
- Check your contract of employment or staff handbook to see if there are any policies about monitoring, and if so, what they say.
- If there doesn't seem to be anything in the handbook or contract then talk to your employer to clarify the situation.
- If there is a policy about monitoring, you should have been informed about it under the LBPR and under the Data Protection Act. You should compare the policy to the guidance produced by the Information Commissioner in the code and the conditions set out under LBPR to check whether it complies.
If the policy does comply and allows your boss to do what you think they are doing then you'll have to decide if this is something you can live with at work. If it doesn't comply then you have a range of options you can explore within the company:
- Firstly try contacting your trade union, professional association or staff association to seek their help in talking to the employer, then
- You can try negotiating with the employer, and finally
- You can consider taking action under the company's grievance procedure.
If you want to go further than this you have a number of options:
- Contact the Information Commissioner to check if your boss complies with the Data Protection Act, if not you could seek compensation.
- See if you could claim compensation under the Regulation of Investigatory Powers Act
- Consider seeking compensation under Article 8 of the Human Rights Act
- Try to claim compensation for a breach of confidence in the civil courts
To take any of these actions (apart from talking to your manager) you will need highly specialised legal advice. The Law Society website can direct you to lawyers who deal with employment and human rights cases in your area. You may also find that other advice agencies such as your local CAB or law centre maybe able to help.
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Question answered by CAB
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