The lack of certainty is compounded by the fact that no one yet knows the extent to which the Human Rights Act will bite on the employment policies of private companies. Only public sector bodies can be sued for breaching the Act. But the courts and employment tribunals have to interpret laws in accordance with the new Act. So a ruling on whether a private sector employer has acted fairly and reasonably – a core question in many tribunal decisions – could turn on the Act's requirements.
'Human rights are great for lawyers and a nightmare at the same time, because who knows what will happen?', says Catherine Taylor, an employment partner at Olswang, the law firm. 'Companies can either be ultra cautious and get the best practice in place now, or they can take a commercial view and wait and see what happens. ' Amid the uncertainty, there are two practical steps lawyers strongly advise all companies to take. The first is to ensure there is a reasonable justification for the surveillance.
'I believe insurers will win rights challenges on covert surveillance, provided they can offer some sort of rational explanation for using it, such as evidence of suspected fraud', says Kevin Fletcher, a partner at Weightmans, the law firm.
'Where people fall into difficulties is where they act on gut instinct. ' The second step is to make anyone affected by the monitoring aware of it, unless there are bulletproof reasons against such disclosure. BP Amoco scored a public relations own goal last year when it emerged that the oil company had installed secret microphones in some of its Scottish petrol station forecourts. The aim was to catch thieves, rather than snoop on staff or customers. But the press furore persuaded BP to put up signs warning of the possible surveillance.
Many employers have lost tribunal challenges when it became clear the employee had not been given any rules on e-mail or internet use, or told they might be monitored. Companies appear to have been slow to absorb this fact. 'There has been an upsurge in people wanting us to look at their computer and e-mail policies in the last couple of weeks', says Catherine Prest, an employment lawyer at Hammond Suddards Edge, the law firm. 'So many employers have got nothing at all, or what they have is wholly inadequate.