Workplace surveillance: What you need to know
The relationship between employer and employee is built on trust and confidence, so as workplaces become more digital, employers have more ways to monitor staff.
Why Workplace Monitoring Is Useful as an Employer
Monitoring is common in many workplaces, employers may monitor to protect staff, for example where work involves safety risks. In fact, in some sectors, monitoring is required by law or regulation.
Often, employers monitor to ensure employees are still carrying out their duties, but there are a range of reasons and types of monitoring that prove beneficial.
Types of Monitoring
Monitoring can include CCTV, checking emails or phone logs, recording calls, or reviewing websites visited, yet there is a strict legal framework to this.
The Legality of Workplace Monitoring
There is no one data privacy law in the UK, which specifically governs the monitoring of employees.
However, there is no express permission given anywhere allowing monitoring nor is there anything preventing it. Along with the development of the various ways in which monitoring can take place the legal framework which governs its use has also had to develop.
Article 8 of the European Convention on Human Rights provides for the right to respect family life.
Electronic forms of workplace surveillance involve the processing of personal data regulated by the General Data Protection Regulation (GDPR). This sets out the principles with which the data controllers must comply when processing personal data and which are relevant and any monitoring undertaken by an employer.
The Investigatory Powers Act 2016 and Regulations 2018 govern the interception of electronic communication during transmission.
Employers must also consider the implied duty of trust and confidence in employment contracts. Monitoring could breach this duty in some situations.
Any monitoring must be proportionate. If you decide to monitor employees, you must inform them.
What Policies & Procedures Are Required for Workplace Monitoring?
Before embarking on any monitoring you must ensure that you have appropriate policies and procedures in place.
This type of information is normally included in an email or electronic communications policy, either within an employee handbook or as part of the employee’s contract of employment.
This policy should be given to employees at the start of their employment and employees should be asked to state that they have read the policy and accept its terms; your policies and procedures need to be clear in telling employees if they are being monitored and what counts as a reasonable amount of personal email, telephone calls and time spent on the internet.
If personal telephone calls or emails are not allowed then this should be made clear. If there are certain websites that are not allowed to be accessed, this should also be stated.
The GDPR requires employers to carry out an impact assessment to identify any negative effects of monitoring. Consider if less intrusive options are available and whether monitoring is justified.
Employment Practices Code
Part 3 of the Information Commissioner’s Employment Practices Code contains guidance on monitoring at work.
It makes clear that employees should be able to understand when they can be monitored on the basis of information given to them by the employer.
Although failure to comply with the recommendations of the code is not unlawful, parts of the code can be taken into account in the event of enforcement action being considered.
The principles of the Employment Practices Code are that employees should be made aware of the circumstances in which the monitoring may take place, the nature of the monitoring and how any information obtained through monitoring will be used.
They should also be informed of what safeguards are in place; simply telling them verbally is unlikely to be sufficient. The code states that employees need have a clear understanding of:
the information that is likely to be obtained
why it is being obtained
how it will be used
who, if anyone, the information will be disclosed to
Monitoring Is More Than Justified, but Ensure That It Is Made Clear
Even if monitoring is justified, aim to balance business needs with respect for employees’ privacy. Many employers allow limited personal use of phones, internet, and email. If you allow this, set out the rules clearly in your policy.
In Scarlett and another v Gloucester City Council ET/1401395/12 two employees were dismissed for using the internet for personal reasons during work hours.
The employment tribunal held the dismissal to be unfair on the basis that there was an informal custom that employees could make personal use of the internet outside of core hours.
The employees had not tried to disguise their internet use from their managers and the firm’s ICT policy allowed personal use if employees adhered to other requirements of the policy relating to internet misuse.
CCTV: Is This Workplace Monitoring?
If there is CCTV monitoring then you must be sure that the employees are aware of this and they are given the reasons for the monitoring.
This can be done quite easily by displaying signs to say where the locations of the cameras are, this is often done in most commercial places.
Any signs need to be clear, visible and readable and contain details of the person in charge of the surveillance and who to contact about the scheme including information such as their website address, telephone number or email address.
Where possible the CCTV monitoring should be targeted at the areas of particular risk and only in areas where expectations of privacy are low. If covert monitoring is being considered then this should only be authorised in circumstances where there are grounds to suspect criminal activity is taking place.
It is only in rare circumstances that covert monitoring can be justified.
In City and County of Swansea v Gayle UKEAT/0501/12 covert surveillance was put in place to monitor an employee who regularly took time off during working hours to play squash. When it was confirmed, the employee was dismissed. During the unfair dismissal hearing, the tribunal found that the employer had breached Article 8 by putting the employee under covert surveillance.
Following an appeal to the EAT, they found that the surveillance was proportionate on the basis that the employer was entitled to know where the employee was during paid hours and the employee should not expect such things to be private
Talk to Orwins for Legal Guidance on Workplace Monitoring
You may monitor activities at work, but data protection law sets clear rules. Be open with employees about why monitoring is needed and any benefits.
Carry out an impact assessment to identify any negative effects. If employees know about monitoring from the start, this manages expectations, aiming to balance privacy with business needs.
If you are considering monitoring employees, seek legal advice to understand your obligations. At Orwins, we can help with practical guidance and support.
