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The Rights and Wrongs of Workplace Monitoring

The Rights and Wrongs of Workplace Monitoring

Martin Stephen

Published by
Martin Stephen

9th January 2017

Evolving technology means companies can monitor their employees more closely than ever, but sometimes surveillance can go too far.

Workplace monitoring in certain circumstances such as safeguarding workers against the risk of unsafe working practices; ensuring compliance with policies; or where it is a regulatory requirement, can be perfectly lawful. However employers can only exercise that right for legitimate business purposes which protects the interests of the employer, its customers or suppliers or workers, or guards against or detects criminal activity. If an employer decides to introduce any form of workplace monitoring the following principles should be observed:

Policies & Procedures

Workers must be clearly notified they are being monitored and the form which that monitoring will take. Importantly, they must know and consent to how personal information about them is obtained and how it is to be used. Employers should have written policies in place clearly setting out the nature of the monitoring, the basis upon which it will take place and why monitoring is necessary. If policies are well defined and clearly communicated, most employees should be aware that they are about to break the rules before they do.

Adequate Justification

Monitoring should not be excessive and must be justified. For example the use of CCTV to ensure staff safety or security by preventing theft or violence is justified. However if the location of a surveillance camera meant a number of workstations were in view, and employees’ everyday activities were being monitored, this could constitute excessive monitoring.

Proportionate Checks

The law allows proportionate checks on employees’ communications but only where this is done for a legitimate business reason. Employers’ policies should set out what permitted and prohibited in relation to the use of company computers, telephones, internet, Wi-Fi and mobile devices, as well as personal devices used for work purposes. Critically, the policies should set out the reasons for, and extent of, the employer’s monitoring of IT systems and devices used in the workplace. This will help to establish that such monitoring is proportionate.

Data Protection Act

If employers monitor workers by collecting or using information, the Data Protection Act will apply. Any material retained from the monitoring of workers should be kept secure and only retained for such period as is reasonably necessary. Employers must not use personal information for any purpose other than that for which the monitoring was introduced, unless it is in the worker’s interest to do so or it reveals activities that “no employer could reasonably be expected to ignore”.

Covert Monitoring

In rare circumstances, covert monitoring may be justified. However, employers must have a genuine reason for carrying out covert monitoring such as criminal activities or malpractice. The monitoring must be carefully controlled and carried out over as short a period as possible and for part of a specific investigation. Any material collected must be destroyed immediately once its purpose has been served.

Physical Searches

All searches, particularly a search of the person or a worker, must be carried out with dignity and respect by someone of the same gender as the worker. If a worker refuses to comply they cannot be subjected to a search or testing. However, properly drafted policies in respect of the above and disciplinary procedures will provide that a failure to comply is a stand-alone disciplinary offence, which could result in dismissal.

This is an overview of privacy in the workplace and is not intended as an authoritative guide. If you have any specific questions in relation to workplace monitoring please contact a member of the WJM Employment Team on 0141 248 3434.

The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at January 2017. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.