Frequently Asked Questions – Employee Monitoring
Employee monitoring can take place in many ways, such as checking emails and internet sites visited by employees or CCTV coverage of the workplace premises. It can be a difficult area for employers to navigate, because a number of areas of law can come into play, including data protection, human rights and the laws on telephone and computer monitoring.
The following frequently asked questions identify some of the major questions around employee monitoring:
1. Can I record calls that employees have with customers for quality purposes?
Monitoring calls for quality purposes is likely to be a reasonable approach for employer businesses in the sales and customer service industry. Data collected may be useful evidence in case of a complaint from a customer, or for training purposes. Both callers and employees should be told right at the start of a call, either by an automated message or by the person who answers, that the call will be monitored. If applicable, employees must also be made aware that these conversations may be archived and that data must be kept securely. This type of monitoring is reasonable and justifiable and, as long as it is conducted openly, will not fall foul of relevant legislation or guidance.
2. I wish to monitor the use of email and internet by my employees as I suspect some employees are using the internet excessively for personal purposes when they should be working.
Before considering the issues around monitoring here, employers should first ensure that the standards of conduct expected of their employees in terms of use of email and the internet are set out clearly in a policy. For example, if personal internet use is permitted at work, employers should indicate for how long and at what times this will be permitted. The policy can also cover rules about the use of email and the internet and inform that disciplinary action may be taken in cases of misuse. An example of misuse is an employee using company emails to sexually harass a colleague. Employers can be vicariously liable for such actions and therefore showing that the rules forbid this type of behaviour may assist in a possible defence.
In regard to monitoring of emails, an employer needs to inform employees if they are planning to monitor emails, tell employees when and why it is being carried out and who will have access to the emails. The monitoring will need to justified and proportionate. An impact assessment should be carried out to ensure this is the case. If an employer needs to monitor the emails of an employee whilst they are away on leave, for business purposes, then the employer should ensure the employee is aware this will happen.
In regard to the monitoring of internet usage, the same principles apply as above, with the onus being on an employer to ensure employees are aware that their internet history may be monitored. However, it is also perfectly acceptable to ensure certain sites are blocked by a firewall. This could assist with cutting down on employees excessively accessing sites such as Facebook, Twitter etc whilst they should be working.
3. I run a small business and I wish to place CCTV on the workplace premises. Is this OK?
The initial question here is to ask what the motivation is for placing CCTV on the workplace premises and to what extent that will result in recording of employees and others. Employers are permitted to monitor the workplace in so far as this is necessary and proportionate. If the CCTV is for security of the outside of the premises and therefore will only result in employees being filmed entering and leaving the premises; this will be considered as reasonable. It may also be reasonable to use CCTV to monitor areas where cash is routinely handled (e.g. tills). It will be necessary to conduct an impact assessment and most importantly, inform employees that CCTV is being put in place in certain areas and let them know that their activities will be filmed. There should also be signs on the premises to make visitors aware that CCTV is in operation. It will also be necessary to ensure that data collected by CCTV is handled in accordance with data protection principles and kept secure and accessible to only those who need access.
CCTV monitoring that goes further than this, such as routine monitoring of employees to check whether they are adhering to their employment contracts is unlikely to be justifiable and other less intrusive means of monitoring should be considered. Privacy should also be respected in areas where employees will have a reasonable expectation of privacy e.g. toilets, changing rooms etc.
4. I suspect that an employee is drug-dealing in the workplace. What monitoring am I able to put in place to determine if this is happening?
In these circumstances, it is possible to put in place secret monitoring (such as video surveillance or audio monitoring) because there is a potentially serious crime involved. The suspicion should be reasonably held and any covert monitoring must only be in place for the time period necessary. In such circumstances, employers cannot inform employees that they will be monitored as this may prejudice the investigation. As for question 3, it is necessary to ensure that the monitoring is proportionate and justifiable. It is therefore important that an assessment is undertaken by an employer to ensure this is the case.
Even where the above conditions for covert monitoring are satisfied, employers must not monitor employees in locations where employees have a reasonable expectation of privacy, as stated above. If an employer feels that monitoring employees in such locations is justified, then it may be a good idea to involve the police.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or [email protected].