Can I secretly monitor my employees?

Posted 28th February 2019

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As an employer, have you ever felt life would be easier if you could covertly monitor your employees’ activities at work?

As an employer, have you ever felt life would be easier if you could covertly monitor your employees’ activities at work? A sort of video assistant referee for the workplace? How much time could be saved for example, should an allegation of theft be made against an employee, if you could simply check the CCTV footage of him or her at the tills? Or where two employees give conflicting accounts of a workplace dispute, if you could just listen to a recording from a hidden microphone?

In addition to solving disciplinary matters and disputes between employees, monitoring can also be used to safeguard their welfare (for example by identifying safety risks in dangerous work environments) or to assist with training. Many employers are tempted to take such measures, but are unsure how far the law allows them to go, particularly in light of the new GDPR legislation (the Data Protection Act 2018).

Employers aren’t prevented from monitoring their employees, though staff are entitled to some privacy at work. Generally speaking, employees must be made aware that they are being monitored, how, and – crucially – why. It’s therefore vital to have written policies and procedures setting out the extent of the surveillance, and to ensure that all staff are familiar with them.

For example, in some workplaces it may be a necessary to carry out random drug testing or searches of employees’ bags. There must be a clear policy that all staff are made aware of, and of course there must be a legitimate work-related reason (such as for example in a hospital, prison or other secure unit, or in the case of drug testing, where employees’ work involves driving).

Equally, employers often wish to monitor staff’s use of email and the internet. Excessive or misuse of these facilities can lead to performance issues, and (particularly in the case of social media) can also give rise to reputational damage, loss of business, and even legal liabilities such as defamation, harassment, or disclosure of confidential information. Again, it is essential to have effective policies in place and to ensure all staff are made aware of them. It may also be necessary to carry out an impact assessment, if the monitoring carries a high risk to employee privacy.

It’s very rare that employers would need to carry out secret monitoring without staff being made aware. There must be a genuine reason for carrying out covert monitoring, for example a suspicion of criminal activity. Evidence should be obtained quickly, and only as part of a specific investigation. The monitoring must stop when the investigation has finished.

In summary then: monitoring should not be excessive, and you should always be able to justify it. Staff should be told what information will be recorded, as well as how long it will be kept. If part of your monitoring process included collecting employee information, then the Data Protection Act 2018 will apply, and of course all information should be kept secure. While the new legislation does not significantly change employers’ obligations on monitoring, there are several provisions which employers need to be aware of including changes to consent as a fair processing condition, notice requirements, data privacy impact assessments, and data subject rights.

For advice on employee monitoring, or any other aspect of employment law, contact a member of the experienced and friendly Employment team at Newtons.

Philippa Roberts