Guidance on surveillance and monitoring of employees
There are some legal aspects that all employers must adhere to, in order to avoid falling foul of the law.
The two major pieces of legislation concerning workers’ rights to privacy are:
- The Data Protection Act 1998
- The Human Rights Act 1998 (came into force in 2000)
It is advisable that all Employers have a Monitoring policy in place should any form of workplace monitoring take place.
This policy should list the forms of monitoring that will take place in the workplace and the purpose it will be used for. The policy should specify how the information will processed and retained.
We have provided guidance and advice in line with the law for different forms of surveillance in the workplace.
- Employees must be notified that they may be recorded. This is usually done by having display signs.
- Employers must notify the Information Commissioners Office (ICO).
- The system must only be used for the purpose it was intended for – i.e. if the system is set up to detect theft, it should not be used to measure the amount of work done by staff.
- There needs to be control over who sees the recordings and Employees can ask to see images where they have been recorded.
- CCTV Code of Practice must be adhered to and gives advice on complying with the Data Protection Act.
- Employers can monitor employees covertly if they suspect they are breaking the law. This should only be done as part of an investigation, and should stop when the investigation is over.
- Covert Surveillance, namely filming is only likely to be justifiable in extreme circumstances relating to national security, public safety or crime prevention.
- Covert filming for mystery shopper training purposes may be used but only with prior notification to employees and should only be used for the purposes stated in the company policy.
- Any monitoring should be justified and not excessive, and employees should be told what information will be recorded and how long it will be kept.
Covert Audio Recording
- Sometimes meetings are covertly recorded by employees.
- Covert recording can be admissible as evidence in an Employment Tribunal providing that there is sufficient evidence that it is relevant to the case.
- A ban on the use of secret recordings can be stated in your Policy as well as stating that recordings are only permitted by mutual consent. However this won’t necessarily prevent someone from recording covertly, and may still be accepted as evidence. You may therefore wish to ask the employee before the start of a disciplinary or performance improvement meeting, whether they are recording the conversation. If they say no, and later rely on this recording, their credibility may be lessened in the eyes of any Tribunal.
Monitoring Company Email, Phone and Internet Use
- In the policy you should clearly clarify whether personal use of Phone, Email and Internet is permitted by Employees and outline any restrictions on website material that can be viewed or copied providing examples what is restricted or considered to be offensive for example (e.g. material containing racist terminology, images of nudity, pornographic content etc.);
- Businesses can legally track vehicles that are Company property.
- If the Company allows the vehicle to be used outside of business hours, it must also have a privacy button or other option.
- Employers cannot track privately owned vehicles.
- As the Information collected is clearly not just about the vehicle, but also about the individual driving the vehicle, the Data Protection Act applies, and any data collected covertly would be considered a breach of the law.
- Prior consent must always be obtained by the individual prior to the search commencing.
- It is useful in your monitoring policy to set out the reasons why a search may be made, where searches would take place and the consequences of refusal.
- Searches should be carried out by an individual of the same gender.
- Searches should always be carried out in private in the presence of a witness
- Whatever information that is obtained through monitoring should only be used for the purpose which it was carried out and should be kept confidential.
- Except with compelling evidence of wrongdoing, a search policy, in general, should apply to and be enforced on all employees;
Search of Desk, Locker, Work area including company vehicle
- Before an individual searches the locker or items, they should ask the Employee if there is anything sharp, or any sharps that may harm them.
- The locker, desk or work area should be searched with the Employee present.
Search of Individual’s Personal Belongings (e.g. Bag and Pocket)
- For a search of an individual’s belongings ask the individuals if they would remove the items from their pockets or the contents of their bags.
If you would like Tamar HR to support you in preparing a monitoring policy or you would like to discuss any aspect of Employee monitoring please contact us.
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