Workers will soon be able to tell if their employer is monitoring their work smartphone and employers should consider reviewing their monitoring and privacy policies ahead of this change, according to employment law specialists at Shakespeare Martineau.
A smartphone update, which is expected to be released by Apple later this month known as iOS 9.3, will make it easier for employees to find out if their employer is monitoring their communications or other activities by supervising their work iPhone. Users will receive a message on their iPhone lock screen and on the ‘about’ page in settings stating that ‘this iPhone is managed by your organisation’.
Bringing the matter out into the open, the update could disrupt workplace morale unless employers pre-empt it by reminding employees about any relevant monitoring and privacy policies. Some employers currently choose to include clauses written into employment contracts which permit them to monitor employee communications and other activities via their work phones and other mobile devices, as and when they wish. However, even if a business’ contract of employment does not provide this consent, it is best practice to have a clear policy in place and to ensure it is shared with employees regularly.
Aye Limbin Glassey, employment law partner at Shakespeare Martineau, says: “The update could unsettle some employees by making it clear whether their iPhone is being monitored by their employer or not. Some employees could become disgruntled if they find out their work iPhone is being monitored, while a colleague’s is not. Workers may not be aware that, under current law, employers are permitted to monitor their text and phone messages, as well as their internet use and email in some specific circumstances. For example, monitoring is allowed if employers have reason to believe that an employee is doing something which mayinclude criminal activity, or in the interests of national security. However, if an employee’s communications are being monitored for quality or business continuity reasons, the law states that they should be warned in advance that this might happen.
“Such activity could lead to workplace disputes, particularly if employers are unable to demonstrate that the criteria used to select which phones are monitored at any one time is not discriminatory and does not go beyond what is permitted by current legislation. Privacy is a sensitive area for many people and employers need to manage the changes with care.” While the release of the update will raise awareness among workers that their work phones and other mobile devices are being monitored, workplace policies in this area are unlikely to change. Aye Limbin Glassey explains:
“As long as monitoring and privacy policies are in place and are being communicated regularly, or if both parties have consented, employers will not need to change much. However, some may feel that the subject of privacy needs to be addressed with greater transparency.” It is possible that some employees may try to block any monitoring that they consider intrusive. However, they may not be aware that doing so could be grounds for disciplinary action under the terms of their employment contract. There was a case last year where an employee was sacked after removing a GPS tracking app from her phone.
Aye Limbin Glassey concludes: “Workplace privacy is in the spotlight at the moment and employers need to take extra care to ensure that their policies are up to date and have been communicated to all workers clearly and openly. Ideally, these guidelines should link back to other employment measures, such as anti-discrimination and disciplinary policies, so that employees are fully aware of what constitutes inappropriate communication or device use, and the consequences of such actions.”