If you’re a manager or employer, do you know how far you can go with keeping an eye on the activities of your staff?

The simple answer is that the law does allow you to monitor your employees, but there are certain things you need to think about, including:

• Ensuring compliance with the Data Protection Act.
• Avoiding constructive dismissal.
• Considering the right to privacy under human rights laws.
• Avoiding getting it wrong and ending up with expensive claims and bad publicity for the business.

Why would you do it?

You may wish to implement some form of monitoring in the workplace to:

• ensure work is being delivered to a high standard
• verify whether there is good customer service
• make sure there is high productivity
• see if there has been any malpractice or misconduct
• check that there are no health and safety breaches or bad working practices
• fulfil regulatory requirements (this is relevant in some sectors).

How to monitor staff

To achieve these aims, you may decide to implement CCTV, monitor email inboxes, look at phone logs or web history, listen in to calls, carry out searches, conduct drug tests, insert devices in vehicles to record the worker’s location or seek information held by third parties (e.g. credit reference agencies).

You may wish to carry out some form of monitoring on a day to day basis, or only introduce it as a reaction to a specific problem. For example, if you suspect an employee is dealing drugs on the work premises, you may think about installing a camera or looking at their emails as part of an investigation into the allegations.

Impact assessment

The Information Commissioner’s Office (ICO) recommends that employers should carry out an impact assessment. The aim of the impact assessment is to enable employers to assess whether the monitoring they wish to implement is a proportionate way to address the problem they are facing.

The impact assessment need not be an onerous task for employers, but you should consider the answers to the following questions:

• What is the purpose of the monitoring and what effect does it produce? – Why do you want to introduce it? What benefits will it bring you? Will it have a negative impact on employees? Will it interfere with their private lives?
• Are there less intrusive options? – Can it be achieved by other ways which don’t adversely affect employees (e.g. supervision or training)? Can monitoring be restricted to only a few employees or does it have to be rolled out to all employees on the site?
• What obligations arise from monitoring? – How will employees be informed about the monitoring? How will information gathered through the monitoring be handled?
• Is it justified? – Thinking about everything above, is it necessary, proportionate and effective?

Telling your employees

You need to be open with your employees about the reason, nature and extent of the monitoring.

It is also useful to consult with employees to get their views before you decide to introduce some new form of monitoring. By consulting with them, you may find it easier to get them on board and feeling relatively comfortable about the monitoring.

Workplace policies and procedures

In Contracts of Employments or the Employee Handbook, employers need to explain the level of monitoring, if any, in place for their workplace. By setting out what employees can and can’t do and the consequences of any violations, employees will understand the scope of the monitoring. You should also make sure that the policies are reviewed and updated regularly to ensure they remain fit for purpose.

If you would discuss different workplace monitoring options, contact your Ellis Whittam Employment Law Adviser for guidance.