There are various reasons why an employer may want to monitor their workplace and the law does not entirely prevent them from doing this. However, they need to balance this with their employees' right to privacy at work and they must ensure that they inform their employees about how they are being monitored as well as their reasons for doing it. Our expert lawyers can advise you on all issues surrounding workplace monitoring.
Types of workplace monitoring
Workplace monitoring is used by employers for a variety of reasons including safeguarding their employees, for security reasons or due to a legal or regulatory need to monitor. The information that is gathered can only be used for the purpose it was gathered other than in exceptional circumstances, such as the discovery of health and safety breaches. There is a range of ways that an employer can monitor the workplace, which include:
- Checking websites visited.
- Automated software checking employee's emails.
- Opening mail or emails received by an employee.
- Listening in on telephone conversations.
- Searches of employees, their work area or their bags.
Employers must inform their employees if they are being monitored and what is and is not allowed. They need to make it clear whether employees can use email, the internet and phones for personal use or not and if they can what is regarded as a reasonable time.
Before monitoring their workplace, employers need to:
- Be very clear what their reasoning is for monitoring the staff and what the benefits will be for doing this.
- Assess if there is going to be a negative impact on their staff due to the monitoring.
- Determine if there is any other means possible to achieve the same result by less intrusive means.
- Determine in light of the above if monitoring is justified.
Monitoring electronic communications
Employers can monitor their employees' electronic communications in the following circumstances:
- The monitoring is related to the business.
- The equipment that is being monitored is there for work purposes (either wholly or partly).
- The employer has taken all reasonable efforts to let their employees know that their communications will be monitored.
Where the above is satisfied the employer does not need the employee's consent. Instead, they need to satisfy one of the following criteria:
- To establish or check facts that are relevant to the business.
- To detect or prevent a crime.
- To determine if their telecommunications system is being used for unauthorised reasons.
- To check that their electronic systems are working correctly.
- To check if a communication is relevant to the business.
- To monitor calls to a confidential help line.
- For national security.
Where an employer is using CCTV, there must be clear and visible signage stating the purpose for the CCTV's installation. Any footage obtained can only be used for the purpose stated by the employer.
It is rare that an employer is allowed to monitor employees without their knowledge. The employer would need to have a valid reason to do this such as a strong suspicion of criminal activity or malpractice. This type of monitoring cannot be ongoing and should only be used as part of a specific investigation and cease as soon as this is finished.
Workplace monitoring and GDPR
Employees have the right to respect for private and family life, their home and correspondence under Article 8 of the Human Rights Act 1988. This right to privacy extends to the workplace and the European Court of Human Rights has ruled that employers should "not reduce private social life in the workplace to zero". However, employers can monitor personal communications so long as they follow certain guidelines.
Monitoring personal communications in the workplace are governed by the EU General Data Protection Regulations that came into force in May 2018. Private communications are regarded as personal data and so employers must prove that they have a lawful ground to collect and monitor the data. It is not possible for an employee to give consent in these circumstances since there is an inherent imbalance of power and so the employee would not be regarded as giving their consent freely since they could potentially face a negative effect if they did not consent (for example the fear of losing their job). Therefore the employer has to ensure that they are processing the data under one of the five other lawful grounds. This is most likely to be legitimate interests, which states that the employer has a legitimate and genuine reason to process the personal date without consent so long as it is not outweighed by the negative effect that this will have on the employee's rights and freedoms.
Whatever methods that they use, the employer must ensure that they are as deliberate and unobtrusive as possible and it is definitely not allowed for employers to use methods that are exhaustive or automated on the off-chance they may find something.
Contact our Employee Data and Monitoring Solicitors London, Mayfair
If an employer is found to have unlawfully monitored their employees or retained data in breach relevant data protection legislation, they may be subject to fines and caught up in expensive and time-consuming litigation. In some cases, improper use of information and failure to notify ICO can result in criminal prosecution.
At Lewis Nedas, our Employment Law Solicitors have over 25 years’ experience assisting national and international companies. Our Employment Lawyers have joined the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues and contracts.