Legal Opinion. Employee Monitoring Laws

What is workplace monitoring

Employers have the right to monitor your activities in many situations at work. Monitoring in the workplace includes:

• recording on CCTV cameras
• opening mail or e-mail
• use of automated software to check e-mail
• checking phone logs or recording of phone calls
• checking logs of websites visited
• videoing outside the workplace
• getting information from credit reference agencies
• collecting information through 'point of sale' terminals, such as supermarket checkouts, to check the performance of individual operators.

All of these forms of monitoring are covered by data protection law. Data protection law doesn't prevent monitoring in the workplace. However, it does set down rules about the circumstances and the way in which monitoring should be carried out.

Before deciding whether to introduce monitoring, your employer should:

• be clear about the reasons for monitoring staff and the benefits that this will bring
• identify any negative effects the monitoring may have on staff. This is called an impact assessment
• consider whether there are any, less intrusive, alternatives to monitoring
• work out whether the monitoring is justified, taking into account all of the above.

Except in extremely limited circumstances, employers must take reasonable steps to let staff know that monitoring is happening, what is being monitored and why it is necessary.

Employers who can justify monitoring once they have carried out a proper impact assessment will usually not need the consent of individual members of staff.

Monitoring electronic communications at work

Your employer can legally monitor your use of the phone, internet, e-mail or fax in the workplace if:

• the monitoring relates to the business
• the equipment being monitored is provided partly or wholly for work
• your employer has made all reasonable efforts to inform you that your communications will be monitored.

You should bear in mind that these circumstances cover almost every situation where your employer might want to monitor your electronic communications, except where the monitoring is for purely private or spiteful reasons.

As long as your employer sticks to these rules, they don't need to get your consent before they monitor your electronic communications, but only if it is for one of the following reasons:

• to establish facts which are relevant to the business, to check that procedures are being followed, or to check standards, for example, listening in to phone-calls to assess the quality of your work
• to prevent or detect crime
• to check for unauthorised use of telecommunications systems, such as whether you are using the internet or email for personal use
• to make sure electronic systems are operating effectively, for example, to prevent computer viruses entering the system
• to check whether a communication you have received, such as an email or phone-call is relevant to the business. In this case, your employer can open up your emails or listen to voice-mails but is not allowed to record your calls
• to check calls to confidential help lines. In this case, your employer can listen in, but is not allowed to record these calls
• in the interests of national security.

Secret monitoring

Some employers monitor their workers without informing them that this is happening, for example, by use of hidden cameras or audio devices. This is very rarely legal. Guidance under data protection law says that secret monitoring should not be allowed in private areas at work, such as staff toilets, unless there is serious crime involved, such as drug dealing.

Employer’s policy on monitoring

Ideally, an employer should have a code of conduct or policy that covers workplace monitoring. If a code or policy has been agreed, it will usually form part of your contract of employment. This means that where an employer is allowed to monitor your activities, these activities could be the subject of disciplinary action if you are using workplace equipment in ways that are not permitted in your contract of employment.

What to do if you are unhappy with monitoring at work

If you think that your employer has been monitoring you in a way which is not allowed, you will need expert advice.

You may be able to:

• talk to your employer about the monitoring and try to persuade them to stop. If you're still working for your employer, you will need to think about whether raising this issue will put your job at risk
• take out a grievance against your employer
• check your contract of employment, staff handbook or anywhere else where your employer might have a policy about monitoring to see what it says
• ask your trade union to help you, if you are a member.

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