Part three of the Employment Practices Data Protection Code – Monitoring at Work

Background

The Employment Practices Data Protection Code (the "Code") is in the process of being published. The Code will comprise four parts, three of which have already been made available, and the fourth part is yet to be published. Once the fourth part becomes available, the Code will be formally adopted. The Information Commissioner has stated there is no present intention to alter the substantive content of the pre-published parts of the Code prior to its official publication.

The Code is based on the Data Protection Act 1998 (the "Act") and provides clear checklists on how to implement the Act. Implementation of the Code should benefit organisations by prompting effective data storage and management, compliance with other legislation and a good relationship with employees.

Legal status

From a legal perspective, the purpose of the Code is to ensure compliance with the Act by providing a clear explanation of the purpose and provisions of the Act. It also provides examples, benchmarks and checklists to assist the employer. The Code is not legally binding per se but provides clear guidelines on how to avoid breaking the law. Any enforcement action would be based on a failure to meet the requirements of the Data Protection Act itself. In any enforcement action, however, the Information Commissioner would cite the relevant sections of the Code. A disregard of the sections designed to ensure compliance with the Act may also indicate that the employer is not complying with the Act.

Part three of the Code

The third part of the Code is the most recent to be published and deals specifically with monitoring at work. A certain degree of monitoring at work is an accepted part of the employee-worker relationship and often results in mutual benefits such as ensuring quality work, a safe environment and compliance with legal or regulatory requirements. Where monitoring leads to the collection, processing and storage of any personal data, however, the procedure must be both lawful and fair to employees. Any adverse impact on employees as a result of such monitoring must be counterbalanced with a discernible benefit to the employer - an 'impact assessment'.

The Code assists the employer in identifying the factors to be considered when carrying out such an impact assessment and helps them decide whether monitoring is a proportionate response to the problem it seeks to address.

For further information, please contact Anthony Fincham by telephone on 020 7367 2783 or by e-mail at anthony.fincham@cms-cmck.com or John Armstrong on 020 7367 2701 or by e-mail at john.armstrong@cms-cmck.com.