Monitoring employees at work – When is it justified and what is allowed?

Following last year’s changes to data protection laws and the enhanced focus on privacy, Harrison Drury’s employment and regulatory team, looks at the implications of monitoring employees in the work place.

What is employee monitoring?

Employee monitoring is the act of surveying employee activity through different surveillance methods, the extent and methods of which differ among organisations.

Employers may need to engage in employee monitoring for different reasons, to track performance, avoid legal liability, save money, train staff, protect trade secrets, or to address other security concerns such as the safety of lone workers.

Such monitoring can take place if there is an objective justification.

However, although monitoring may sound attractive to an employer, it has been shown that such practices may negatively impact employee satisfaction due to their infringement on an employee’s privacy.

How might it be carried out in the workplace?

Employers may seek to monitor their employees’ use of electronic systems in the workplace in the following ways:

• Email content and traffic: Sophisticated computer programs can search the content of emails sent by an employee, checking for key ‘danger’ words or destination addresses. Even if deleted from a user’s terminal once sent, emails are retained on a computer’s hard disk long after an employee has left the business and may also be retrievable using specialist software.
• Internet use: Programs are used to monitor and block employees’ use of specific websites. It is possible for the employer to see which websites have been visited by employees by the use of ‘cookies’ or ‘web prints’.
• Telephone use: Some employers monitor employees’ usage of their telephone systems in terms of volume and cost. Employers regularly conducting client business over the telephone may also record samples of telephone conversations.
• CCTV: CCTV and video surveillance can be undertaken in an employer’s workplace and the surrounding areas. Quite often this is for health and safety and security reasons.
• Bag searches: If employers intend to carry out bag searches a workplace policy must be in place that informs employees that bags and purses will be subject to searches. Employers must have a legitimate work-related reason for carrying out searches.
• Vehicle tracking: Tracking devices are often fitted on company cars or other work vehicles for fleet management purposes. This can be for any number of reasons, such as tracking lone or vulnerable workers, fuel economy, reducing vehicle wear and tear, or guarding against private use of work vehicles that might invalidate vehicle insurance.

Employers must inform their employees about any monitoring arrangements and the reasons for them. This should be done clearly and thoroughly with all staff.

The legal position

As methods of monitoring have advanced and developed, so has the regulatory framework governing their use. Therefore, the law currently follows a ‘mixed-bag’ approach to employee surveillance.

To further evidence this point, here are just some of the relevant legal authorities governing this area:

• General Data Protection Regulation (GDPR) 2018
• Data Protection Act (DPA) 2018
• Investigatory Powers Act (IPA) 2016
• Regulation of Investigatory Powers Act (RIPA) 2000
• Telecommunications Regulations 2000
• European Convention on Human Rights (ECHR)
• Human Rights Act (HRA) 1998

As the UK does not currently have a specific law to govern the monitoring of employees, employers are neither expressly permitted to monitor, nor are they prohibited from doing so.

In essence, it’s about finding a reasonable, legitimate and proportionate balance.

Key implications an employer must consider

While it is important to consider the implications of the recent data protection changes, it is also fundamental for employers to consider obligations imposed by Human Rights.

Article 8 of the European Convention on Human Rights (ECHR), as incorporated into UK law by the Human Rights Act 1998 (HRA 1998), provides individuals with the right to respect for private and family life which in turn includes the right to private correspondence.

Additionally, the duty of trust and confidence implied into an employee’s contract of employment is also relevant as the employer’s monitoring activities may, in some circumstances, constitute a breach of this duty. This may, therefore, give an employee a claim for unfair constructive dismissal.

A further consideration to note is that an employee who believes they have been unfairly targeted by their employer’s monitoring activities could also claim they have been unlawfully discriminated against under one or more of the protected characteristics, under the Equality Act 2010.

Therefore, the employer must be careful not to target an employee using these monitoring systems without ensuring a sound basis in law with their legal adviser first.

For further guidance on employee monitoring, setting up policies or employment contracts, please contact our Employment and Regulatory Team.