Release of Staff Monitoring Code Postponed

The Information Commissioner`s Office (ICO) is responsible for monitoring data controllers` compliance with the Data Protection Act 1998, carrying out investigations where appropriate, and prosecuting those who fail to adhere to the Act`s provisions. It also publishes guidance from time to time on what action it believes data controllers need to take in order to comply with the Act.

The ICO published a controversial draft Code in October 2000 setting out the obligations imposed by the Act on employers in relation to data held about their employees. In an effort to push the Code through to final publication, the ICO split it into four Parts. The first two Parts, on the conduct of interviews and management of employee records, were released earlier this year. The final two Parts, on staff monitoring and medical testing are still in draft form. The Code is not deemed officially published until all four Parts have been released, although it is not envisaged that once a Part has been released it will be altered in any material respect.

The third Part, the Staff Monitoring Code, has proven to be the most controversial. The seventh draft went out for consultation over the summer and was expected to have been finalised a few weeks ago. Explaining the delay, the ICO has just confirmed to Rollits that the release of the Staff Monitoring Code has been put on hold until the New Year due to the incoming Information Commissioner, Richard Thomas, wanting to review this crucial document personally.

Once the Staff Monitoring Code has been released it will be essential for all employers to review their internet, email, postal, CCTV and telephone monitoring policies, along with all data handling and communications policies already issued to staff, to check that they comply with the complexities of the Code, the Act and associated legislation.

For those employers who have not yet prepared such policies, it will become an even greater priority to put them in place. Not only do such policies help employers to ensure that all staff are aware of their obligations under the Act, but it could prove crucial to the defence of a Tribunal claim to be able to prove that an employee bringing an unfair dismissal claim was informed as to how he or she would be monitored and that such monitoring was in compliance with the Code.
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