Employers are increasingly eager to keep a close eye on their existing, prospective and past employees’ activities, with many companies monitoring their employees’ use of email, internet and telecommunications. More obvious surveillance technologies, such as closed circuit television (CCTV), have also been introduced to the workplace in order to monitor the activities of the workforce and/or for security purposes. However, monitoring certainly has an impact on workers and their privacy rights, and employers should ensure their activities in this regard remain on the right side of the law.
Whilst there is no specific law regulating the use of CCTV in the workplace, the Information Commissioner has issued an Employment Practices Code (Code) under the provisions of the Data Protection Act 1998 (DPA), part of which deals with employee monitoring. The Code states that continuous “video or audio monitoring of particular individuals is only likely to be justified in rare circumstances” and, “where possible, any video or audio monitoring should be targeted at areas of particular risk and confined to areas where expectations of privacy are low”. Therefore, whilst there may be justification for installing CCTV which covers a particular security risk (such as the cashier desks in a bank), or one which is monitoring a point of entry or exit, a camera which is merely aimed at monitoring employees’ everyday activities may be more difficult to justify and could be in breach of the Code. Although a failure to comply with the Code’s recommendations does not automatically equate to a breach of the DPA, relevant parts of the Code will be taken into account in the consideration of any enforcement action.
It is also arguable that unjustified surveillance or any other material breach of the Code could amount to a breach of the implied term of trust and confidence (implicit in all employment relationships), which, itself, could give rise a claim for constructive dismissal. Employers should take steps to mitigate the risk of claims of this type being brought against them by providing clarity about their monitoring intentions in their contracts of employment and staff handbooks.
Ultimately, it will be for employers to decide whether the operational benefits that they feel would arise out of their proposed monitoring arrangements outweigh the legal risks that accompany them. In any event, in addition to adhering to the action points and guidance within the Code, employers should take the following practical steps:
Of course, the ways in which employers choose to monitor their employees (whether through the use of CCTV or by close surveillance of emails and internet usage) vary dramatically and, as such, the practical steps that each employer should take may differ. If in any doubt, employers should seek specific legal advice before imposing new monitoring activities on their employees.