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  • Workplace monitoring and the law

    Adrian Mudd   July 20, 2016

    Do your staff members check their Facebook accounts at work? Do they ever send personal emails from a work account? Do they skype their friends to ask them non work-related questions?

    How would you know unless you’re paying attention?

    monitor your employees

    The number of managers tracking their employee’s activities has dramatically increased over the recent years – an act which has become a point of contention for many. A manager may be suspicious of a member of staff or a particular situation that could lead them to feel compelled to investigate the situation before making any rash allegations.

    Over half of employers use video surveillance, and you are able to monitor your staff through a series of methods, however this must be done in a way that abides by legal requirements. If there is an authentic concern for the business such as assault or recurring theft in the workplace, it is legal to monitor a member of staff without their consent. This depends on whether the workplace is unionised, federal or non-union. Monitoring is not appropriate without valid reasoning.

    As an employer, you should clearly outline what you intend to monitor and how you wish to do this. Always give details about the benefits and possible negative effects that this may have. In this article, you will discover the rules and regulations of workplace monitoring and how it corresponds with the law.

    The types of monitoring

    The law distinguishes between targeted (individual) and systematic monitoring, and whether the act is open or covert. Systematic monitoring, for example, has become a popular approach due to the ability to monitor all employees, thereby avoiding discrimination or prejudice.

    The interception of electronic communications (eg. telephone, emails, internet activity) occurs when the contents of a communication are made available to someone other than the intended recipient. While this act is not illegal, it may need be carried out under the strict guidelines of RIPA and LBP (if a government organisation).

    Why do employers monitor their staff?

    Employee monitoring is the act of viewing staff activity for reasons including the staff safety or observation. By doing this, they are making themselves aware of any wrongful or unexpected activity that may be taking place.

    • To prevent confrontation, violence or theft in the workplace
    • To prevent deliberate damage in the workplace
    • To ensure that health and safety procedures are being followed in the workplace
    • To monitor or improve productivity of employees
    • To protect business interests
    • To check whether communications such as emails and phone calls taking place are relevant to the business

    When can an employer monitor their staff?

    • If the monitoring relates to the business
    • If the equipment being observed is provided partly or wholly for work
    • If an employer has reason to believe that an offence is being committed
    • If an employer has made reasonable effort to inform an employee that their communications will be supervised

    monitoring staff

    Ways that employers can monitor their staff

    There are several methods that can help an employer safely and legally monitor the work or behaviour of a member of staff. This could be performed with the help of employee monitoring software or other equipment.

    • CCTV / video surveillance
    • Drug testing
    • Bag searching
    • Checking staff emails
    • Checking staff web history
    • Location monitoring
    • Telephone tapping

    Appropriate steps for employers

    As a general rule, it is vital that employees are made aware of the nature and extent of any workplace monitoring. As an employer, you must be clear and concise when demonstrating to your employees the privacy levels that are expected when using work communications for personal use.

    This information should be documented in the company policy statement, as well as in the employee handbook and contracts. An impact assessment should be conducted to determine which type of monitoring is necessary – systematic or targeted. During the assessment, the employer must identify:

    • The purpose and benefits of the monitoring agreement
    • Any adverse effects it is likely to cause
    • Alternative methods that could be used instead of monitoring
    • Whether or not monitoring is justified
    • The obligations that arise from monitoring

    The specific laws of workplace monitoring:

    Data protection and human rights laws cover any monitoring that involve taking data, images or drug testing. Employers should have a written policy on searches in the workplace.

    Data protection act 1998: The DPA holds eight key principles that must be followed. Basic CCTV systems used in shops and supermarkets and different to those used to closely monitor employees secretively. An employer must ensure that they are complying with the rules of the act, and the data must be captured lawfully and fairly.

    Human rights act 1998: The HRA is important for employers to consider. Employers are not allowed to monitor workers everywhere (e.g. in the toilet) as this would break the DPA.

    The risks of monitoring your staff:

    If you wish to monitor a staff member without their knowledge, you will be required to fully justify your actions beforehand. While such occasions are a rarity, covert monitoring may be used where the suspect(s) has been, for example, detected of committing a crime, or equivalent malpractice. An impact assessment will again be used to ensure the relevant safeguards are in place.

    Mutual trust and confidence: employers should not act without reasonable cause which is likely to destroy trust and confidence in the workplace. They are taking the risk of employees potentially resigning or claiming unfair dismissal.

    Breaking the law: putting up video surveillance without notice to employees may be violating employee privacy rights.

    Unless CCTV is being used for particular/exceptional circumstances in the workplace (e.g. to catch crime) an employer should inform staff why they may be introducing CCTV, the nature of the observation and their rights to privacy.

    Video surveillance in the workplace is one of the most effective forms of employee monitoring. If you’re worried or concerned about an employee and you’d like to find out more, please take a look at our selection of CCTV and spy cameras available for purchase. Contact us for additional questions.