Nowadays employees have come to accept that monitoring in the workplace is a routine part of the employer/employee relationship. Most employers will conduct some form of checks whether on the quality of work produced by their workforce or to ensure that health and safety regulations are being followed.
Employers who wish to monitor their employees at work have the legal right to do so provided it is for a business reason and staff are aware they are being monitored. Monitoring is often carried out through CCTV, recorded telephone lines, vehicle trackers, systems logs or viewing emails and internet history.
An employer who is monitoring or intending to monitor their employees should have written policies and procedures in place explaining what forms of monitoring are taking place and why this is necessary. For example, monitoring warehouse workers may be required for safety regulations to ensure forklifts or other machinery are being used appropriately and that employees are wearing the correct PPE (Personal Protective Equipment). Such monitoring is reasonable as it protects both the employee and employer.
Monitoring staff in secret without their knowledge or consent is rarely legal and therefore employers should be wary of installing monitoring devices in private areas such as toilets and changing rooms unless a serious crime is involved.
If employers wish to monitor staff in a more invasive way i.e. asking them to undergo drugs tests or bag searches they must have consent.
Can employers monitor their staff members’ social media accounts, emails, and use of instant messenger apps in the workplace?
The answer is yes – employers can monitor employees in the workplace this way, however it is advisable for them to implement an internet and social media policy if they intend to do so. The policy must be clear in order to be effective and there needs to be a balance between monitoring for genuine business reasons (e.g. protecting the brand and reputation of the business) and respecting the right of employees to privacy and freedom of expression, especially in respect of social media usage.
Employers can be held liable for inappropriate actions of their employees if carried out during the course of their employment. This means that if an employee is to disclose that they are an employee of a company on social media platforms the employer should make it clear to them that they must not breach confidentiality or make any comments that may bring the employer into disrepute.
Do employers have a legal obligation to tell their staff they are being monitored?
With the exception of very limited circumstances (for example a criminal investigation) employers must inform employees that they will be monitored, how this will be conducted and the reasons why they are being monitored. It is advisable to have clear written procedures explaining this in detail and circulating them to all members of staff.
Concerned about employee monitoring in the workplace?
If an employee believes that their employer has been monitoring them in a way which is in breach of data protection laws (e.g. by installing CCTV in a bathroom) the first port of call would be to raise their concern with their employer who will need to justify that the monitoring is permissible. The employee should refer to their staff handbook and/or contract to check what their employer’s policy is on monitoring. If the concern cannot be dealt with informally then they should raise a formal grievance.
Finally, an employee who believes that their employer is in breach of data protection law could complain to the Information Commissioner’s Office who can investigate the matter. They have the power to serve enforcement notices, “stop now” orders, fines and even prosecutions on non-compliant businesses.
Whether you are an employee concerned about monitoring in your workplace, or an employer wishing to stay on the right side of the law please contact a member of our specialist employment law team for further help and advice.
The Backhouse Solicitors Team