an employers guidemanagement, compliance and the protection of your mobile workforce

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The principal legislative framework is contained within the Data Protection Act 1998, the Human Rights Act 1998, the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000.

There are no specific laws relating to employee monitoring.

employer responsibility to their mobile workforce

All employers have long since had responsibilities for the health and safety of their employees. However, now the law has been tightened further and managers of organisations must demonstrate a relevant duty of care and protection to employees or persons performing services for them.

Failure to comply with legislation can result in heavy fines and in some cases imprisonment.

This duty of care extends to employees who are field based, on the road, work in the community, conduct home visits, and em-ployees who work outside normal office hours. Field based em-ployees who work alone are often referred to as ‘lone workers’ and it is estimated that there are over 4 million lone workers in the UK (Office Of National Statistics).

In order to comply with duty of care legislation, employers have utilised a number of business tools to ensure their workforce is protected within these guidelines. This has included the ability to monitor and review working practices and procedures.

monitoring and employer responsibiltyTo date, monitoring and reporting by employers has been mainly focused towards employees who are office-based, due to direct access to fixed line, internet and email services. How-ever, the working practices of field based employees has been more difficult to monitor effectively, until now. Two essential business assets, mobile phones and vehicles, used by mobile workers can now be monitored and their activ-ity reported to the employer, overcoming previous difficulties and allowing the information to be used for working practices.

Important information such as monitoring an employee‘s use of hands-free in accordance with company policy, now provides employers with a detailed and comprehensive ability to report against legislative guidelines.

Mobile phones and vehicles are an extension of company re-sponsibility and therefore associated with legislation related to the employee’s safety and employer’s duty of care.

It also extends to the use of ‘grey-fleet’ vehicles, which is any vehicle that is used by an employee for making a work-related journey.

Introduction

...the use of mobile and vehicle tracking solutions from Crystal Ball provide vital information that allow employers to demon-strate a duty of care.

By monitoring and reporting activity on business assets used by mobile workers, employers can adopt a responsible ap-proach to the welfare of their employees, and thereby clearly demonstrate proof of legislative compliance.

…the monitoring of employer provided business assets such as mobile phones and company vehicles by Crystal Ball, de-livers critical data to support company policy and contracts of employment.

…MobileMonitor from Crystal Ball allows employers to assess the usage of company mobile phones in real-time and there-fore manage costs. In addition, MobileMonitor will report the proper use of handsfree by employees when in transit and in accordance with company policy.

to concludeCompanies are within their rights to monitor business assets and employee activity, as this ensures that they meet their duty of care and corporate responsibility to address the fol-lowing legislation:

The Working Time DirectiveThe Equality Act 2010Health and Safety legislationThe Corporate Manslaughter Act

The following information contained in this employers guide is a brief summary of the legal background relating to tracking and monitoring. It is intended for guidance only and does not constitute legal advice.

MobileTrack Pro

Mobile Track is the app that is taking journey tracking to the next genera-tion and provides a versatile alterna-tive to vehicle tracking.

MobileMonitor

A mobile phone app that reports the use of hands-free whilst driving, and goes beyond traditional itemised bills by reporting in real-time on all call and text activity.

MobileLWP

A giant leap forward in providing additional protection, security and information to employers for workers based out in field - especially for those who operate in potentially high risk environments.

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Legislation

Employers are responsible by law for their employees' welfare when theyare away from their business premises for business purposes. Since April 2008, employers can now be prosecuted for Corporate Manslaughter if it can be proved that negligence in their duty of care obligations caused a death.

what relevant legislation do employers need to be aware of?

working time directiveA company was recently fined £24,000 specifically for being unable to provide monitoring evidence when prosecuted under the directive.

In the event of an incident occurring, an employer will be required to produce evidence that they are adhering to the ‘Working Time Directive’ and that they are properly monitoring their employees’ working hours.

Crystal Ball has specifically developed a comprehensive ‘Timesheet report’ that directly addresses this legislation.

Exported into Microsoft Excel, the reports allow you to adjust the time records manually to exclude breaks and periods of unavailability.

...with Crystal Ball‘s mobile and vehicle applications your company ensures compliance with the’Working Time Directive’ legislation, by always being able to accurately monitor your employee‘s movements.

corporate manslaughter and corporate homicide act 2007Employers have a corporate responsibility for the health and safety of their employees. However, now the law has been tightened and owners/directors of organisations more than ever before owe a relevant duty of care to employees or per-sons performing services for it.

Where a corporate culture exists that allows dangerous practic-es to go unchallenged and an accident or death result, organi-sations and the management may now find themselves liable.

...Crystal Ball’s MobileTrack Pro and MobileLWP lone worker protection solutions provide employers with the technology to ensure their lone workers’ whereabouts are known during business hours, and that they can instantly notify the appropri-ate contacts or authorities in an emergency.

Current European legislation, overseen by the Health and Safety Executive within the UK,defines that an employee must not work more than 60 hours in a single week or an average of 48 hours per week over a rolling 17 week period. It also states that employees should have a minimum of an 11 hour rest period in each 24 hour period. Night workers are strictly limited to eight hours work within a 24 hour period. These allowances cover not just time spent working but also include time spent travelling.

health and safety (offences) act 2008This Act, which came into force in January 2009, increases the penalties against those who break health and safety law and pro-vide courts with greater sentencing powers. However, unlike the Corporate Manslaughter and Corporate Homicide Act a breach of health and safety rules will not have to result in a death.

The Health and Safety (Offences) Act 2008 extends the £20,000 maximum Magistrates' Court fine to a wider range of health and safety offences for which fleet managers and fleet decision-mak-ers, including directors, could be prosecuted for, and face up to two years in a prison, if convicted in a Crown Court, a fine or both.

Prior to the 2007 Act, it was often difficult to identify responsi-bility within an organisation as to who directly contributed by way of management failure to accidents or even the death of an employee. Now, without appropriate systems in place, employ-ers and managers risk the threat of prosecution for any offences that occur.

...Crystal Ball’s live web based tracking gives customers the in-formation at their fingertips to successfully manage risk, provid-ing tangible proof of ongoing commitment to their duty of care responsibilities. The system provides all the relevant information necessary to ensure compliance with an employer’s duty of care responsibilities on vehicle usage, servicing schedules, driver be-haviour, journey reporting, incident reporting, and other infor-mation.

...Crystal Ball isn’t just an effective business tool for fleet and HR managers, it’s a necessary tool minimising risk for employers and senior management.

driving at workWith up to one third of all UK road traffic accidents involving somebody who is at work at the time, the Health & Safety at Work Regulations 1999 forms part of the guidelines designed to minimise risk to employees by work related driving activities.

Work related road safety can only be effectively managed if it is integrated into an employer’s health and safety at work ar-rangements and effectively monitored. Elements such as mobile phone hands-free policy, vehicle safety, driving durations and hours of work all have to be reported against in order to comply with legislation.

...MobileMonitor from Crystal Ball, will alert and report on the use of hands-free by an employee. Although it is not illegal to drive and make a call using hands-free, there are risks for employers to consider.

Prosecution for road traffic offences can be extended to employ-ers who do not show sufficient care, guidance or company policy towards their mobile workforce.

It is a general legal duty of employers under Section 2 of the Health and Safety at Work Act to maintain safe working arrangements for all their employees whether mobile or of-fice based. In order to comply with this rule Section 3 of the Manage-ment of Health and Safety at Work Regulations requires that employ-ers must also carry out full risk as-sessments of the hazards to which their employees are exposed.

For mobile workers these risks or hazards could include violent encounters from the general public, sudden illness or road traffic acci-dents.

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what the law says about privacy and human rights

It is imperative that employers incorporate tracking and monitoring procedures with the knowledge of the employ-ees involved - either within the initial contract of employ-ment or any subsequent amendments that are relevant to its introduction.

This will ensure that the employer does not contravene laws in place to protect the employee.

data protection act 1998 (dpa)This is the only legislation that affects the monitoring of all employees by whatever means if it involves the processing of information by automated means.

Employers should already be familiar with the scope of the DPA as they should already have in place detailed commu-nications policies dealing with internet use etc. For detailed guidance, reference should be made to the Information Commissioner’s Employment Practices Code and the Supple-mentary Guidance to that Code.

human rights act 1998 (hra)Article 8 contained in the HRA gives every individual a right to respect for his private and family life, his home and his correspondence. The HRA applies directly only to employees of public authorities but indirectly it affects private sector employees because employment tribunals and courts are expected to take it into account.

The right to privacy does not outweigh all other rights and must be balanced against other interests. In relation to employee monitoring, this right is largely protected by the DPA but the right to privacy, where it applies, is overriding and at the very least employees should be able to deactivate monitoring systems when they are not at work.

...Crystal Ball tracking and monitoring solutions offer a ‘privacy’ feature which an employee can activate at agreed times and outside working hours. Once activated, no further tracking data is collected and the employer is notified auto-matically through Crystal Ball.

protection principals set out in the DPA. In essence, employers should:

- way up the pros and cons of the proposed monitoring and the need for it prior to implementation

- tell staff about the monitoring, the reasons for it, the information that will be obtained and how the information will be used

- manage and store properly any information collected

For the purposes of the DPA, the employer is the data controller and must adhere to the eight data

Legislation

Interception on a public or a private system by employers is authorised by the LBP Regulations where:.

- business communications are being monitored to ascertain whether business standards and procedures are being complied with and to establish the existence of facts

- the intent is to prevent or detect- crime

- the intention is to detect- unauthorised use

In addition, the following must always apply:

- the interception must be in connection with the employer’s business

- the interception must be on a- telecommunications system- provided wholly or partly in- connection with the business

- the employer must make all- reasonable efforts to inform employees or other callers of the possibility of interception

equality act 2010The Equality Act 2010 harmonised and replaced previous legis-lation (such as the Race Relations Act 1976 and the Disability Discrimination Act 1995) and ensures consistency in what an employer has to do to make their workplace a fair environ-ment and to comply with the law.

The Act covers equality based on - age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity.

These are referred to as ‘protected characteristics’ and the Act has been modified to cover new groups. As a result, employ-ers may have to review and change some of their policies or practices currently in place.

regulation of investigatory powers act 2000 (ripa)RIPA is very limited in scope in relation to tracking and moni-toring. It deals with the interception of communications in the course of transmission and covert surveillance, and is largely aimed at public authorities.

However, an employee from either the public, or private sector, could bring a civil action against their employer under RIPA, unless the employer has a reasonable belief that both parties consented or it is authorised under the Telecommuni-cations (Lawful Business Practice) (Interception of Communi-cations) Regulations 2000(LBP Regulations).

Interception on a public system could impact on an employer who monitors texts or telephone calls but such an intercep-tion can be authorised by the LBP Regulations.

As already mentioned, the information contained in this em-ployers guide is a brief summary of the legal background, is in-tended for guidance only and does not constitute legal advice. It is not intended to be relied upon but is simply intended to raise awareness of the issues involved in employee monitor-ing. Legal advice should always be taken.

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Established in 2005, Crystal Ball’s vehicle tracking, lone worker protection, and mobile tracking solutions, are adopted by private and public sector organisations across the UK,

Europe & Asia - supporting thousands of mobile workers around the world.

Our Customer PromiseCrystal Ball’s service level agreement delivers peace of mind to our customers, assuring them of maximum

uptime and unparalleled support.

Details correct at time of print. E&OE. © Crystal Ball 2014

0333 321 4888 www.vision-corporateservices.co.uk | info@vision-corporateservices.co.uk

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