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Surveillance – protecting property, profits and reputation


 Workplace surveillance has increased over the past few years as employers introduce new methods and technologies to monitor employees.  There are a number of areas where employers might seek to monitor the activities of their employees such as: 

  • Randomly opening up individual employee’s emails or listening to their voicemails to look for evidence of malpractice
  • Examining logs of websites visited to check that individual workers are not downloading inappropriate material
  • Telephone use in terms of volume and cost.
  • Use of CCTV in the workplace
  • Video recording workers outside the workplace to collect evidence
  • Drug and alcohol testing employees who operate machinery or who are responsible for the safety of others.
  • Searching employees who are in a position to steal products.

Quite often employers will want to protect their intellectual property or equipment and will have genuine reason for monitoring employees.

Are there constraints on employers in relation to the surveillance of an employee?

Although there is no explicit right to privacy under UK law there are a number of factors that an employer must be weary of when monitoring employees.

Employers are bound to comply with the Data Protection Act 1998.  The Information Commissioner has issued an Employment Practices Code which employers should consider and implement despite the fact that it does not have legislative effect. The Code advises that employers should always carry out a risk assessment before carrying out any monitoring and consider whether surveillance is proportionate, necessary and whether there is any other less intrusive method of achieving the same outcome.

Article 8 of the European Convention on Human Rights provides for a right to respect for a persons privacy, family life, home and correspondence. The European Convention on Human Rights was incorporated into UK legislation by the Human Rights Act 1998. Although the Human Rights Act 1998 applies to public authorities, the definition of public authority is broad and includes Courts and Tribunals therefore it is relevant to all employers. In construing whether an employee has been unfairly dismissed a Tribunal must have regard to the parties’ rights under the Human Rights Act 1998. Additionally Courts and Tribunals are required to interpret all legislation to be consistent with the rights incorporated by the Human Rights Act 1998.

If an employer informs an employee that they are being monitored, or if the employer has a clear policy on the use of technology and the monitoring of employees and importantly a legitimate reason for carrying out monitoring, then the employer may not be guilty of a breach of Article 8.

A good monitoring policy should set out:

  • The circumstances in which an  employee can or cannot use the employer’s system for private communications;
  • The extent and type of private use that is allowed;
  • Any restrictions on internet material that can be viewed or copied;
  • What alternative methods of communication can be used to ensure confidentiality;
  • The purpose, method and extent of monitoring;
  • How the policy is enforced and the penalties for breaching it.

Employers must maintain the relationship of trust and confidence that is implied into every contract of employment.  If an employee considers that the method or level of surveillance used by an employer is not justified, they may feel that the employer has breached its duty of trust and confidence towards them and thereafter resign and claim constructive dismissal.

Furthermore, employees who feel that they have been unfairly targeted by their employer’s monitoring activities may also claim that they have been unlawfully discriminated against as a result of their sex, race, age, disability, religion or sexual orientation. 

I suspect that a member of staff may have a drug or alcohol problem, can I subject them to tests?

Where an employer suspects an employee is abusing drugs or alcohol, there are certain circumstances which would justify the employer asking the employee to submit to testing. An example of this would be where employees are responsible for operating machinery or for the safety of others as in such an instance there are clear health and safety reasons for ensuring that the employee is not under the influence of any substance.

The Information Commissioner recommends that employers should gather information through testing designed to ensure safety at work, rather than to reveal the illegal use of substances in a worker’s private life. However, in instances where an employee’s conduct or performance has given cause for concern or in high stress working environments such as city trading, testing may be carried out on a random basis.

Can I monitor my employees outside working hours?

In certain circumstances employers may wish to monitor employees outside work, for example where employees are on sick leave and the employer suspects that they may not be genuinely ill or when employees are suspected of theft or “moonlighting”. Covert monitoring should be authorised by senior management and only used in exceptional circumstances. The employer should be satisfied that there are grounds for suspecting criminal activity or equivalent malpractice and that notifying individuals would prejudice its prevention or detection.

Employers should ensure any private investigators that they employ only collect and use information on workers in accordance with the employer’s instructions and that the information should be kept secure.

In the case of McGowan V Scottish Water, Scottish Water suspected that McGowan had been falsifying time sheets in relation to the number of times that he had been called out to attend the water treatment plant where he worked. Scottish Water hired private investigators to video Mr McGowan which confirmed Scottish Water’s suspicions and led to him being dismissed. The Scottish Employment Appeals Tribunal held that the infringement into McGowan’s private life was justified as less intrusive measures Scottish Water had considered would not have been effective and the surveillance had uncovered criminal activity.

This creates something of an anomaly as employer’s will not inform employees that they have been under surveillance unless they have successfully uncovered evidence against them and are moving to dismiss. If the surveillance proves the employee to be fraudulent or dishonest then it is more likely to be proportionate. However, if the surveillance fails to uncover any wrong doing on the employee’s behalf then the employee may never be aware that the surveillance has taken place hence there will be no repercussions for the employer.

Conclusion 

Workers have a legitimate expectation that they can keep their personal lives private and that they are entitled to a degree of privacy in their working environment. Workers awareness will influence their expectations therefore workers should be aware of the nature, extent and reasons for monitoring unless in exceptional circumstances covert monitoring is justified. To avoid falling foul of the Data Protection Act 1998 and the Human Rights Act 1998, an employer should ensure that the surveillance being used is proportionate by considering whether there is a legitimate objective, and whether the method chosen to accomplish the objective is no more than is necessary.

If you would like to discuss any of the issues raised in this article, please contact Gareth McCay, Associate Solicitor, Employment Department,  on Belfast 028 9055 3300 or by email, gareth.mccay@tughans.com