A recent article in the Guardian noted that employers often choose to monitor employee activity at work and that this can be for a number of reasons – health and safety, to protect business interests, to prevent misconduct, improve productivity or identify training requirements. In some circumstances, it may be required to comply with a legal or regulatory obligation.
It is very important, however, to be aware of the limits on employee monitoring, particularly with the advent of all-seeing, all-recording software on mobiles, computers, and increasingly on vehicles. Employees are entitled to a degree of privacy at work, and overstepping the mark can result in breaches of data protection or human rights legislation.
What types of monitoring can we carry out?
The most common forms of employee monitoring are:
- Email content and traffic;
- Internet use;
- Telephone use;
- Vehicle location; and
- Drug and alcohol testing.
None of these are illegal, but they must comply with legal restrictions.
The Data Protection Employment Practices Code is engaged where an employer monitors workers by collecting personal information about them – essentially any material whereby an individual can be identified. This requires employers to strike a balance between their interests and the worker’s expectation of privacy.
How do we strike the right balance?
Monitoring an employee must be a proportionate way of achieving your aim. An impact assessment should be carried out to check if the monitoring is being carried out by the least intrusive method.
This should look at the purpose of the monitoring, the adverse impact on the employee, any possible alternatives, all legal obligations on employer and employee, and whether ultimately the monitoring can be justified.
Covert monitoring, being particularly intrusive, should not usually be used unless an employee is suspected of criminal activity or serious malpractice.
What else do we need to do if we decide to monitor employees?
Employees should be given full information about the monitoring being carried out – be as open as possible about when and why you need to monitor them.
Third parties in any way involved in the monitoring (e.g. if emails they send will be caught) should be informed that their information may be used in that way.
You should ensure that there are appropriate safeguards in place to prevent unauthorised or accidental loss or leakage of the data.
How can we help?
The obligations placed on employers here are very strict, and there can be fines of up to £500,000 for a breach of data protection law. Unlawful monitoring could also lead to constructive unfair dismissal claims and arguments about breaches of human rights.
This is only a summary of the principles to be aware of when monitoring employees – if you have any specific queries, please get in touch with your usual Brodies’ contact.
On June 3, 2015