EXPERT: Catherine Kerr, of Aaron and Partners LLP
In our latest Expert Blog, Catherine Kerr, of Aaron and Partners LLP, discusses potential legal considerations when tracking your fleet drivers…
As the trial into alleged phone hacking at the News of the World continues, consumers are becoming increasingly aware of their privacy and data protection rights.
It’s a trend that we have seen translate to the fleet industry, and transport bosses need to make sure that tracking devices fitted to their vehicles do not infringe on the rights of their employees.
The use of tracking systems has become increasingly popular among fleet operators of all sizes, providing data ranging from a vehicle’s location at any set time to the performance and behaviour of drivers over a set journey or distance.
But many employers fail to realise that the data collected is allocated to the employee, rather than the vehicle.
As such, without an appropriate policy agreement, the use of any data collected from the trackers could infringe on the Data Protection Act 1998.
There’s been so much focus on the recent high-profile hacking cases that employees are becoming increasingly savvy with regard to their data protection rights, and are asking the right questions as to whether their employers are allowed to track their phone or car.
As there is no legal obligation for an employer to install vehicle tracking systems, it’s vitally important that they have a clear policy in place to validate any data collected.
Since creating the policy in April 2013, I have had numerous enquiries where clients are looking to take disciplinary action against employees that were found to be in breach of company policy through the use of vehicle tracking.
However, several of these did not have a vehicle tracking policy in place, and as part of a ‘belt and braces’ approach, I advised them not to use the vehicle tracking information in relation to any disciplinary action, as it would have raised questions about a breach of the employees’ data protection.
These companies had a golden nugget of irrefutable data proving inappropriate behaviour from their employees, but were unable to use the information because of the potential repercussions of breaching their data protection rights.
Not only does not having a suitable policy in place potentially negate the use of collected data in disciplinary proceedings, it can also negate other beneficial uses for tracking technology.
If a vehicle is lost or stolen, an employer could use information provided by a tracking device to assist with its relocation.
However, as the police force or an insurance company is a third party, and the tracking device logs details of an employee’s movements rather than the vehicle, the information could again be seen as a breach of data protection.
Practically speaking, in the majority of instances an employee wouldn’t have a problem with such information being provided.
However, if the tracker had recorded information that indicated inappropriate behaviour, or that the employee was in any way involved in the disappearance of the vehicle, the use of data provided by a vehicle tracking system without an appropriate policy in place could be ruled out of any future legal or disciplinary proceedings.
There also benefits for employees to think about.
If they are working alone or in a remote area, having the vehicle tracking system in place provides extra peace of mind that they are being monitored for their own safety.
It’s in the employee’s interest to have the tracking system in place, and they value being informed of the use of tracking devices on work vehicles.
I think managers have to be pro-active on this issue to avoid the potential difficulties caused by not being appropriately covered.
In my experience, they need to be upfront and transparent with their employees to avoid any potential confrontation.
The more transparent a company is with its policies and protocols, the less chance there is of disputes arising with employees.
Really, it’s like taking out an insurance policy.
While there isn’t an issue now, taking out a vehicle tracking policy ensures your monitoring activity and data collection is within the law, saving time, effort and potential costs further down the line.
A recent case at the court of appeal, Halliday v Creation Consumer Finance, provided a clear example of how employers must ensure they operate within guidelines stipulated by the Central Office of Information.
The case found that the claimant’s personal details had been processed without permission by their employee, in turn breaching their data protection rights, and was awarded £750 for injury to feelings.
Though the case does not involve a vehicle tracking policy, it’s one of the first where injury to feelings has been caused by a breach of data protection, and illustrates how such a complaint can be brought against an employer.
It’s a clear example of how employees are becoming better informed of their rights in regard to data protection, and as the phone hacking case continues, I have no doubt that employees’ understanding of the law in this area is only going to improve.