Workplace surveillance is a tough balancing act

The challenge facing employers over staff monitoring is striking a balance
between damage limitation, and the workers’ right to privacy

The granting of privacy rights to staff in the workplace must be
counterbalanced by two main principles: the fact that such rights will be
exercised reasonably and with respect for co-workers; and in exercising such
rights, the central needs of the business in which the worker is employed are
not undermined.

Over the past 10 years, we have witnessed a significant increase in the use
of technology by staff and of monitoring facilities by employers. Such
developments have placed a substantial strain on managing what can be referred
to as a ‘rights equation’. There is a plethora of legislation covering privacy
issues, including the European Convention on Human Rights, the Human Rights Act
1998, the Regulation of Investigatory Powers Act 2000 (RIPA), recent data
protection provisions and guidance regarding monitoring in the workplace. The
objective of all this legislation is to create a framework to balance the
rights equation.

However, the TUC has claimed that employers’ attempts to monitor workers has
led to an invasion of their privacy, has increased stress levels and has
affected productivity. The TUC is particularly concerned about employers’ use
of CCTV and tests for alcohol and drugs.

The overbearing employer who tracks an employee’s every movement in the
style of a reality TV show is not going to create a conducive atmosphere.
Similarly, if a worker abuses the relationship of trust and confidence between
them and the employer by misusing company equipment or failing to provide
faithful service, then productivity will also suffer.

The three most contentious areas of workplace monitoring are: CCTV,
alcohol/drug tests, and e-mail/telephone monitoring.

In US courts, the standard test is that a worker must show their subjective
expectation of privacy is objectively reasonable. In relation to CCTV, this has
led to some illustrative case law. The US courts deemed that tracking staff
coming and going through the main entrance was appropriate. as the employer had
a legitimate interest in the efficient operation of the workforce.

In contrast, the covert filming of a break room was a breach of privacy as
the area was neither a public place, nor was it subject to public view or
hearing.

Drug/alcohol testing by employers is becoming more prominent. The general
rule is that although they have the right to expect staff to perform their
duties without impairment, they cannot force staff to take a test. They also
need to justify such a test – even if a policy is in place. This may include
health and safety issues, or the specific requirements of the job.

As in most aspects of modern employment, the underlying principles for
balancing the rights equation are: transparency, respect and reasonableness.
Although the legislation is not perfect, it does attempt to put a sensible
framework in place.

In practice, policies on internet use, telephone monitoring and e-mail can
set out specific parameters of acceptable and unacceptable types of access.
Employers should also cross-refer to the discipline policy, to ensure that
staff are aware of the ramifications of inappropriate behaviour. CCTV should
only be used where appropriate.

A sensitive employer who respects the workforce should recognise that there
must be an element of trust between both parties, and should only seek to
utilise surveillance methods in relation to the performance of workplace
duties. Monitoring by technology should support and not replace good people
management skills. The key is to set clear boundaries, adopt good management
skills and ensure that a working environment which balances the rights equation
is achieved.

By David Gibson, Solicitor, Dickinson Dees

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