Monitoring and Surveillance of Staff

Employers may have a variety of reasons for monitoring staff. For example, such monitoring may be required in order to check the quality of customer service, to ensure the proper health and safety of staff, to review staff skills and competence, or to discover if there has been any criminal or other illegal activity committed by staff. All of these can be legitimate reasons.

There are a number of forms of monitoring, such as opening staff e-mails, checking telephone record logs, installing tracking devices in company vehicles, and the use of CCTV. Again all of these may be legitimate. However, in order to be lawful, the employer must comply with the requirements of various pieces of legislation if they are to carry out such monitoring in a lawful manner. There are a number of pieces of legislation which are relevant to staff monitoring, and certain types of monitoring require consideration under different pieces of legislation.

Health and Medical Information
Collection of medical information constitutes the “processing” of “sensitive” personal data under the terms of the Data Protection Act. This means that an employer will need to obtain the explicit approval of the worker for the collection, use, storage, and/or alteration of medical information held about them. The employer will need a legitimate reason for obtaining the medical information in the first place, and must make this reason clear to the particular employee concerned. Very careful efforts must be taken to keep this type of information secure. The employer will also need to be able to show that there is a legitimate reason for obtaining this information, and that obtaining such information is proportionate to their reasons.

In addition to consideration of the Data Protection Act, the employer will have to ensure that it complies with the requirements of the Access to Medical Records Act when obtaining a medical report form the employee’s GP or medical practitioner. This legislation requires the employer to follow a certain procedure, and to give certain information to the employee before seeking a report.

Alcohol and Drugs Testing
Some types of business may want to be able to monitor staff for alcohol and drug misuse. This is particularly relevant to businesses that require their staff to operate potentially dangerous machinery, or vehicles. Collecting this type of information by testing workers for alcohol or drug use can be legitimate for health and safety reasons in this context.  In order to deal with this legitimately, and fairly, the employer should have a specific alcohol and drug testing policy (see PAYG policy), which sets out the rules and guidelines that will be operated. The staff should also be informed of the provisions of and reasons for the policy. Testing should not be done on staff that are not required to carry out the particular tasks that may be affected by alcohol or drug use. Any random testing should be genuinely random. Wholesale testing of all staff is unlikely to be justified, unless all staff perform the task(s) that require these safety precautions and monitoring to be used.

IT, Internet and email use
Huge numbers of staff have access to their employer’s internet and e-mail facilities in the course of their work.
Any monitoring of internet or e-mail use by staff is only legitimate if it complies with the requirements of the Data Protection Act. It is perfectly proper for an employer to want to ensure that the internet and e-mail facilities provided to their staff are actually being used for their work purposes.
Guidance provided by the Information Commissioner’s office suggests that employers should not open e-mails sent to their staff which are clearly private in nature, and that monitoring should be done by reference to the address or heading of the email. This would be adequate in spotting excessive personal use by a worker. In order to make and establish a clear approach to use of internet and e-mail facilities employers should introduce and implement a comprehensive IT, internet and Email Policy (see PAYG Policy). Such a policy can set out the rules, and standards of use of these facilities. It will also be vital that staff are made aware of such rules and standards set out in the policy, together with the nature and extent of any monitoring that will take place.

CCTV 
Many shops now have some form of CCTV in place. The primary purpose of these is usually to monitor areas that are open to the public, particularly where the employer’s goods are on view, and or accessible to the public. If an employer is going to use CCTV it should make its staff aware of that fact.

Covert and Secret Monitoring and Surveillance
The legal starting point is that covert and secret monitoring and surveillance will amount to an unlawful infringement of a worker’s human rights in the workplace. Under the Human Rights Act 1998, individuals have the right to private life, and private correspondence. The office of the Information Commissioner recommends that covert monitoring or surveillance should only happen in extreme cases, for clearly targeted purposes, and only for a limited period.
Relevant appeal court cases on this subject indicate that secret monitoring and surveillance will only be lawful if it is “proportionate”. In order to be proportionate, an employer will need to be able to show that the interference with the individual’s rights was proportionate in all the circumstance. This means that limited secret monitoring may be appropriate if it is clearly and carefully targeted, and is only used for the period necessary to establish if the activity of concerns is actually happening, and to establish when and how the activity of concern is happening. Therefore, if the employer suspects an individual of stealing from his business, the relevant secret monitoring will only be proportionate if it focuses on the particular suspect, in the location of the suspected thefts, and for such period as is necessary to prove or disprove the suspicions. If a particular employee or group of employees is the subject of suspicion the monitoring should not cover other employees.

Penalties for illegal monitoring
The court can order employers to pay compensation to any individual whose rights under the Data Protection Act have been breached, where that individual has suffered resulting damage or distress. Individuals can seek the intervention of the Information Commissioner, to assess the steps and measures being taken by his or her employer.
There is also a possibility that an employee that has been the subject of improper monitoring or surveillance may be able to bring a claim of constructive unfair dismissal against the employer on leaving his or her employment because of the monitoring.  Any such claim of constructive dismissal would usually proceed on the basis of the monitoring amounting to a breach of the implied term of trust and confidence owed by the employer to the employee.

Summary
All in all this is a complex and controversial area of law, and employers need to be aware of the risks associated with staff monitoring and surveillance, and the legal restrictions within which they must operate.