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With CCTV cameras everywhere you go these days, how likely is it that your employer or client will be keeping an eye on you? Basically, quite likely. Employers can monitor staff through a variety of methods – but it must do so in a way that is consistent with several legal requirements.
Many employers will choose to monitor phone and IT systems usage by their staff, and in some sectors employers will also use CCTV and other methods to monitor their products/goods.
Most large employers now will have a Social Media Policy which may include monitoring of employees usage of networking websites (and so on). Many employers will also have an IT and Communications Policy also setting out how employees can use their systems.
The laws that cover the area of monitoring include:
The implied legal obligation of trust and confidence that exists between an employer and employee is also relevant – Employers should not act without reasonable and proper cause, in a way which is likely to destroy or damage the relationship of mutual trust and confidence between themselves and their employees.
However, The Human Rights Act 1998 also plays an important role here as it gives individuals’ a right to privacy and the UK’s laws try to recognise that employees may feel that monitoring by their employer at work is intrusive.
Therefore, employers need to find a balance between an employee’s legitimate expectation to privacy and the Employers interests when they monitor their staff, in any way; and there must be a legitimate purpose for the monitoring.
Generally, monitoring should normally be carried out by an employer in an open and systematic way only, unless targeted and/or covert monitoring is justified.
Targeted/covert monitoring will usually only be justified in exceptional circumstances, where there are grounds to suspect criminal activity or serious malpractice by the employee in question and the monitoring is necessary to prevent or detect this crime or malpractice, where no other method is feasible.
If this targeted monitoring provides information inadvertently of other malpractice by other workers, this evidence should not be used against those workers unless it is a case of serious gross misconduct. Where the misconduct is minor in nature, use of the ‘secret’ footage to discipline workers will generally not be allowed.
Personal data collected through monitoring must be for legitimate purposes and cannot be used for any other purpose than originally intended.
Surveillance of staff outside of the workplace may also be acceptable if the employer can demonstrate it was ‘justifiable’ (they have credible reasons to suggest an employee is involved in wrongdoing or breaching company policies) and ‘proportionate’ (the employer did not go any further than was necessary in its use of surveillance).
Basically, any monitoring that is done by the employer must be proportionate to the issue the employer seeks to address.
In advance of the GDPR becoming law on 25th May 2018, the Information Commissioners Office have confirmed that cover monitoring of employees can only be justified in exceptional circumstances where informing the employee involved would prejudice the prevention or detection of a crime.
In a 2014 case, Atkinson v Community Gateway Association, the Employment Appeal Tribunal held that the Employer accessing an employee’s emails, in the course of a disciplinary investigation into the employee’s conduct, did not amount to an unjustified interference with the employees’ private life – the employee did not have a reasonable expectation of privacy in circumstances where he had sent emails from his work account in breach of the e-mail policy (which he himself had drafted and was responsible for enforcing!) and the e-mails were not marked ‘personal/private’.
The fact that Mr Atkinson had used the email system in breach of the Association’s email policy was discovered as a result of its legitimate investigation into his conduct. Employers should bear in made that staff may have a reasonable expectation of privacy at work if the Employer does not have an ‘Email and Internet Use Policy (or similar) which is made known to all staff.
In early 2018, two important decisions have been given by the European Court of Human Rights (ECHR):
If you need help you can contact the Information Commissioner’s Office, the UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals. With the introduction of the GDPR in 25th May 2018, employees will have more rights to transparency in relation to how they are monitored and we will provide more detail nearer the time!
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
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