Generally, employers need the consent of employees before they can lawfully monitor communications at work e.g. email, internet use, telephone conversations. To listen to your employees’ telephone calls without their consent is likely to be a breach of data protection legislation.

This is because monitoring is seen to be intrusive and employees have a right to expect certain levels of privacy, even at work.

Covert monitoring is not often advisable unless there is a clear identifiable reason and openness may jeopardise the prevention or detection of malpractice. It is not likely to be justifiable in these circumstances.

To be able to treat personal calls as a disciplinary issue, the employer must first set out their rules on the subject. It is important, that when an employer wants to take action against an employee for breaking rules, that the employer can evidence that the employee knew about the rule, and knew that his action would constitute a breach of the rule. This is to avoid the opportunity for the employee to plead ignorance – that he had no idea that what he was doing would be considered unacceptable. Therefore you need to clearly state that personal calls on company telephones are not permitted.

In order to be reasonable, employees must also be told that their calls will be monitored in order to ensure that rules are not being broken. This is best done in a formal manner and in writing to avoid any confusion or claims by the employees that they had not been made aware of your intention.

The formal method can be done in a couple of ways. One is by including a clause in employees’ contracts of employment which states that certain communications undertaken by the employee during the course of their work will be monitored.

Another method is to implement a broad communications policy, for example, that sets out the company’s general intentions and expectations around all methods of communication. This could then include your expected standards of behaviour in relation to the use of telephones, internet etc and inform the employee that, should their behaviour breach your rules, there will be consequences. You would then bring to their attention that, in order to ascertain whether staff are keeping to the rules, you will monitor their usage. The breadth of the monitoring should be made clear in the policy but it is within reasonableness that you say all calls will be recorded and all inboxes will be continually monitored. In rare circumstances when staff need to make a private call and cannot use their mobile phone, you could include provision that you will find them an unrecorded line to use.

Where it is clear that employees are breaking the rules – rules that they were aware of – then disciplinary procedures should be followed.

For further clarification on the issue then contact the Peninsula Advice Service on 0844 892 2772.