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WATCHING THE WORKERS – HOW FAR CAN YOU GO?
ARE THERE ANY PITFALLS?

(For more information please contact George Davies Solicitors on 0161-236-8992)

Do you suspect your employees are spending more time surfing the net or visiting inappropriate web sites, sending and receiving personal emails or downloading offensive material than they are carrying out their work? 

The Internet and email are now widely used in a variety of businesses, but unfortunately due to the ease of use many employees abuse the system resulting in disciplinary action in most cases.  As a result, monitoring employees at work is common practice amongst many employers.  Monitoring can take place in a variety of ways, including examining emails, recording phone calls or listening to voicemail messages, examining web sites that have been visited or installing CCTV cameras.

Monitoring is not however quite as simple as it sounds.  Monitoring can be extremely intrusive into people’s lives.  Employees are entitled to keep their personal lives private and expect some degree of privacy at work.  A claim under the Human Rights Act in respect of someone’s right to privacy at work can be included in an Employment Tribunal claim to support another claim being brought, such as unfair dismissal.  Extreme care must be taken so that the employee and employer relationship of trust and confidence is not interfered with. It is therefore essential that employers comply with the Data Protection Act if employees are being monitored and information is collected. 

In short, the Monitoring at Work Code and the Data Protection Act do not prohibit monitoring at work, but there are restrictions that must be adhered to regarding the way it is carried out.  Monitoring must be justified and should only take place in limited circumstances and under strict control.

Of utmost importance is that all employees must be made aware of any monitoring that takes place, the reasons for it and to what extent.   The best way of communicating this to employees is by introducing relevant policies, which should be handed to all employees.  Policies should include: use of telephone, email and Internet. Any such policy should state the type of monitoring being undertaken, when or if employees are allowed to use the telephone, email and Internet for private usage, when monitoring is being carried out and what, if any, disciplinary action will follow if the policy is breached.

Any employer wishing to introduce monitoring into the workplace must consider the impact it would have on staff and customers.  It is vital that you consider how intrusive your choice of monitoring will be on your employee’s private lives and their working relationship with you.  You should also determine the purpose and benefits of such monitoring, including its effectiveness and consider any alternative methods.  You will also need to take steps to decide who will see the information and how it will be kept secure and to what extent your employee’s will be made aware of it.  Care should be taken not to open emails that clearly show they are private or personal.  If you are to check the email accounts or voicemails of workers, you should make sure they are aware of this. The number of people with access to personal data should be kept to an absolute minimum.

Monitoring of employees without their knowledge is known as “covert monitoring” and should only be done in exceptional circumstances where criminal activity is suspected and to notify the suspect would hinder investigations. Senior management should always be involved in such monitoring.

 In order to comply with the DPA 1998, the Code recommends the following steps:

  • Identify the person responsible for monitoring and ensure a mechanism is set up for checking that procedures are being carried out.

  • Ensure employees are made aware of it and that it is taking place for a clear and justified purpose.

  • Create policies on e-mail, telephone calls and Internet use.

  • Ensure that employees and customers/clients know about any cameras, including when and why they are in place.

 In short….

  • Consider the purpose of monitoring, its benefits and its justification

  • Establish the adverse impact it could have on employees and others, such as customers

  • Consider alternative methods to monitoring and the type and extent of your monitoring

  • Consider obligations arising from monitoring, such as compiling new policies and setting up processes to secure records

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