Surveillance on staff is usually wrong

Employers who like to keep close tabs on staff at work could be taking a risk.

Press reports claiming high street retailer Marks and Spencer staff live in a “culture of fear” because of “intensive surveillance” have again brought workplace surveillance into the spotlight. The company denies the allegations, made by a former employee, who earlier had been dismissed for leaking confidential plans to slash redundancy pay to the media. But the incident shows that the actions of employers, as well as employees, can come under scrutiny.

Other incidents, too, illustrate the dangers of workplace monitoring going too far. Last year, the European Court of Human Rights ruled that a state-run college in the UK violated an employee’s right to privacy when it secretly monitored her personal e-mails, internet use and phone calls at work.

So how far can employers go to keep tabs on their staff? Employees have a right to privacy in the workplace. This means there is a limit to how far employers can go to monitor staff at work. For example, employees have a reasonable expectation that, unless the employer tells them otherwise, their telephone calls and e-mails at work will be kept private.

Clearly, some level of monitoring is reasonable, for example, to ensure the quality of work, such as monitoring an employee’s sales figures to ensure they are meeting their targets. But there is a range of ways employers might try to monitor staff, such as installing a hidden camera to catch a thief, CCTV cameras to see if staff are meeting health and safety requirements, or regular checking of websites visited by employees.

But employers must strike a balance between the needs of the business and employees’ rights to protect their private lives. Listening in to a telephone call between a colleague and her doctor to find out whether she is pregnant, for example, would be out of the question.

In general, any interference with privacy must be no more than is reasonably necessary and the employer should have good reasons for doing so.

Covert monitoring – without the employee knowing – is only justified in exceptional circumstances, for example, where serious fraud is suspected and disclosure might harm an investigation by tipping off the employee.

Do the ends justify the means? An employer who suspects a member of staff is leaking confidential business information or is preparing to set up in competition might be justified in keeping a closer eye on them. The crude reality is that the more damaging the evidence you find, the easier it is to justify the monitoring. Employers whose snooping proves fruitless, should be wary of potential claims.

An employee who feels they have been excessively watched might argue this is a breach of trust and confidence, which could result in compensation claims for breach of contract or unfair dismissal.

Employers who engage in unlawful monitoring could also face unlimited damages and potential fines under data protection laws, although in practice, such claims are rare.

Aside from the financial costs, the damage to brand or corporate reputation may be much more. Oppressive monitoring may demotivate staff and cause public embarrassment. The recent spat between Marks and Spencer and its former employee is perhaps an example.

Manage expectations

Employers should manage privacy expectations by having a clear policy that explains how and why monitoring will take place at work. Company rules on monitoring should be clearly communicated to staff at induction, as well as through regular reminders.

Employers that monitor phones, e-mail or internet access should have a clear policy that sets out what is allowed and what is not: eg personal use is to be kept to a minimum. Reasonable efforts should be made to let people outside the business who send or receive e-mails, or participate in phone calls, know that these could be monitored. This could be done, for example, through a recording at the start of the phone call or a standard e-mail signature.

Employers that manage expectations are less likely to face claims from disgruntled employees who feel that they are being spied on.

Key points

Firms planning to monitor employees should, in advance:

• Consider why it is needed, the impact on employees, and whether there is any alternative

• Only monitor as far as is necessary (eg only install CCTV in the areas where it is really needed)

• Tell employees what monitoring is carried out and why, unless covert monitoring can be justified (eg in the case of suspected theft)

• Avoid monitoring in areas where employees would expect privacy, such as toilets, unless serious crime is suspected.

Source: The Employment Practices Data Protection Code issued by the Information Commissioner

Adam Rice, professional support lawyer, Travers Smith

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