Stay ahead of the curve with our exclusive Q&A series, brought to you by leading law firm, Arthur Cox, LLP, designed to answer your most pressing legal questions. These expert insights provide clear guidance to ensure your HR practices remain compliant and protect your organisation.  

This month's question:

Is it lawful for an employer to monitor communications between a trade union representative and trade union members?

Employers should be careful in monitoring communications between a union representative and the members. It brings two key issues that should be considered being careful not to infringe the rights of the members of the Union. The other issue to be wary of is the Employer’s data protection obligations, particularly since any personal data that reveals trade union membership will be regarded as special category data as per the UK GDPR.

General Union Rights

The Labour Relations Agency for Northern Ireland has issued a code of practice which briefly covers the monitoring of communications by the Employer. The code indicates that Employers, if providing facilities for union representatives, should include a “confidential space” where an Employee can discuss private matters. 

The code also states that union representatives will have legitimate expectations that they would be able to communicate to union members without the Employer intruding by monitoring the communications. Ideally, the rules around communications and monitoring should be agreed between the Employer and the union.

Finally, Employers can only require access to communications in exceptional circumstances, otherwise, they should respect the confidential and sensitive nature of the communications. Any access and use of the data should be tightly regulated.
 

Data Protection Rights

As noted, data relating to trade union membership is special category data. This is important as special category data is subject to tighter regulations than other data. Employers should take particular care in handling the data and should only process it if one of the exceptions apply. An example of an exception is if the subject of the personal data gives their explicit consent. Another example is that the data is required to be possessed so that the Employer can comply with laws around social security and social protection. As seen from these two examples, such data can only be processed in rare and specific circumstances.

In summary, Employers should be careful when monitoring Employee communications, however, this obligation is heightened if the communications are between a trade union representative and union members. It engages further rights such as rights by virtue of being a member of a union and data protection rights.