Covert surveillance of employees

The issue of privacy has rarely been out of the news in the last few years, as a result of the phone-hacking scandal and revelations of secret mass surveillance of individuals by national intelligence agencies.

As an employer, keeping an eye on your staff is vital but you must also stay on the right side of the law. Emma Thompson, employment law specialist at Thackray Williams, advises how employers can monitor staff without infringing their right to privacy.

Examples of covert surveillance

There are many reasons why you may wish to monitor staff, such as to prevent theft or fraud, reduce the use of workplace equipment and time for personal purposes, cut down on non-genuine absence, monitor the quality of customer service and gather evidence for possible disciplinary or legal action.

Surveillance of employees can take many forms, including:

• monitoring use of email, social media and the internet;
• checking telephone record logs and recording telephone calls;
• using tracking devices in company vehicles; and
• installing CCTV in the workplace.

Right to privacy

Under Article 8 of the European Convention on Human Rights, which has been incorporated into UK law by the Human Rights Act 1998, an individual has the ‘right to respect for his private and family life, his home and his correspondence’. Covert surveillance will breach the right to privacy if there is a reasonable expectation of privacy.

Employers must also comply with laws relating to data protection and surveillance. The Employment Practices Data Protection Code issued by the Information Commissioner provides guidance on monitoring employees and states that action should only be carried out if there are grounds to suspect criminal activity or serious malpractice. It also states that an employer would not be justified in carrying out monitoring where workers have a genuine and reasonable expectation of privacy, such as in workplace changing rooms or lavatories or at home. The code recommends that covert monitoring should only happen in extreme cases, for clearly targeted purposes, and only for a limited period of time.

In a 2013 case, the Employment Appeal Tribunal decided that a county council was justified in putting an employee under covert surveillance when they suspected that he regularly left work during working hours to play squash. The employee was dismissed and claimed unfair dismissal but the tribunal decided that the surveillance was proportionate and the dismissal was fair. The council was entitled to know where the employee was during working hours and an individual who behaved fraudulently could have no expectation of privacy. In addition, he had been filmed in a public place outside a sports centre. Even if the right to privacy had been engaged, the council could justify its conduct.

Carrying out an impact assessment

The code states that an employer should carry out an impact assessment before conducting covert surveillance. This should balance the needs of the business against the impact on the employee and an employer should consider whether there is a less intrusive way of achieving its purpose, such as by spot checks rather than continuous monitoring or by taking statements from witnesses. An employer must also ensure that monitoring is limited to a relevant individual or small group of employees and should consider whether the monitoring is justified.

A monitoring policy

It is also advisable to have a clear policy on monitoring and employees should be made aware of its contents. A policy should set out why monitoring may take place, the nature of the monitoring, when information about employees is likely to be obtained, how it will be used and who will have access to it.

Possible claims

An employer that carries out monitoring in breach of the law could find that any resulting dismissal is unfair. In addition, an employee may resign and claim constructive dismissal. An employee who believes that they have been unfairly targeted by their employer’s monitoring activities could claim unlawful discrimination. The court can order an employer to pay compensation to an individual whose rights under data protection or surveillance law have been breached and the Information Commissioner can fine an employer for a breach.

There is also the risk of reputational damage if it becomes known that an employer has breached its employees’ right to privacy.

For more advice on privacy, monitoring policies or any other employment law problems, contact Emma Thompson

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.