Legal Q&A: Surveillance in the workplace

Employers will choose to monitor their employees for a variety of reasons, for example to safeguard their employees, to protect business interests, to ensure quality of customer service and to comply with legal and regulatory obligations. Employers need to be aware of how they can monitor staff lawfully.

Q Can an employer monitor its employees?

An employer can monitor its employees, but it must do so in a way that is consistent with a range of legal obligations. These include the requirements of the Regulation of Investigatory Powers Act 2000 (RIPA), Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (LBP Regulations) and the Data Protection Act 1998. The implied obligation of trust and confidence is also relevant and the various legal obligations will be taken into account by an employment tribunal where monitoring is a feature of the case, eg if it has formed part of the investigatory process in a dismissal case.

Q What about an employee’s right to privacy?

The Human Rights Act 1998 and the right to private life are highly relevant in this context; for private sector employers these principles are enshrined in the other pieces of legislation and legal considerations referred to here. The law recognises that employees may understandably feel that monitoring is very intrusive and be concerned that confidential or sensitive information will be seen by those without a business need to know it. Therefore, employers are required to try to strike a fair balance between an employee’s legitimate expectation to privacy and the interest of the employer.

Q What sort of monitoring can take place?

To obtain a balanced approach, the law distinguishes between targeted (individual) and systematic monitoring (where all employees/ groups of employees are monitored in the same way as a matter of routine), and between open and covert monitoring. All of these may be lawful, providing the requisite controls are in place. There is also a crucial distinction between monitoring accessed communications and intercepting unaccessed ones. The latter is known as the “interception” of electronic communications (eg telephone calls, faxes, emails and internet access). An interception occurs when, in the course of its transmission, the contents of a communication are made available to someone other than the sender or intended recipient (eg reading an email before it is read by the intended recipient). Interception of electronic communications is highly regulated and may be carried out by the employer only in strict accordance with RIPA and LBP Regulations. A failure to do so may give rise to criminal sanctions.

Q What steps should employers take?

Employers should ensure that employees are aware of the nature and extent of monitoring that may take place in the workplace. The employer must be clear about the levels of privacy an employee can or cannot expect when using the employer’s systems for personal communications. Clear and easily accessible policy statements are a must and a level of informed consent may be required in certain circumstances. Policies should also explain how the employer will use any information that has been obtained via monitoring and the safeguards that are in place for the workers who are subject to the monitoring.

For any monitoring, an impact assessment will be vital and, so far as possible, monitoring should be on a systematic basis. Where specific and targeted monitoring is required the impact assessment and appropriate safeguards will be even more important.

The impact assessment is to determine whether monitoring is necessary, and if it is, how it may be carried out. Any monitoring must be proportionate to the issue the employer seeks to address. In carrying out an impact assessment an employer must identify:

  • the purpose behind the monitoring arrangement and the benefits it is likely to deliver;
  • any likely adverse impact of the monitoring arrangement;
  • any alternatives to monitoring or different ways in which it might be carried out;
  • the obligations that arise from monitoring (especially how the information obtained through monitoring will be stored and processed in accordance with the Data Protection Act); and
  • whether or not monitoring is justified.

Q Can an employer monitor employees without their knowledge?

There may be occasions where an employer decides that covert monitoring is justified. These occasions will be rare and exist where open monitoring is likely to prejudice the prevention or detection of crime or equivalent malpractice or the apprehension or prosecution of offenders. Again, the impact assessment process will be even more important in these instances, as will relevant safeguards.

Michael Bradshaw, partner, Charles Russell LLP

FAQs from XpertHR

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