How much employee surveillance is permissible

2015-06-08 Philip posted:

Have you ever felt that you need to keep a VERY close eye on your employees?

In the US, it would seem some employers have taken monitoring of their employees to a new level. A US sales executive is suing her employer for invasion of her privacy: alleging she was fired after deleting a mobile phone app which tracked her movements – both inside and outside of work.

According to court documents, employees were instructed to download an app ‘Xora’ to their phones. The app can help “automate the process of tracking employee and job time” and allows them “to see the location of every mobile worker on a Google map”. In the lawsuit the employer admitted that the employee would be tracked off duty - even knowing how fast she was driving.

Could the same kind of monitoring happen in the UK? This level of monitoring would almost certainly be unlawful without an employee’s knowledge, and in breach of their human rights and data protection legislation.

The more intrusive the investigation, the more likely it is to be a breach of the employee's right to privacy.

But that is not to say that employers can’t monitor an employee’s movements at all. For many, this has become an everyday fact of the working environment, whether through the use of CCTV, monitoring websites staff visit, checking emails, or keeping a record of phone calls. It is quite common and lawful for employers to track company vehicles, even where used privately, provided the tracking does not continue outside working hours.

Employers may choose to monitor a worker’s activity for a number of reasons: from health and safety, to protecting business interests, or to prevent misconduct, improve productivity, or identify training requirements. It may also be necessary for compliance of legal and regulatory obligations not to mention detect fraud.

In a recent survey, 88% of companies worldwide suffered from some form of fraud. In Europe, it's an inside job in 50% to 60% of cases.

The Information Commissioner has published guidance in a helpful though not very inspirationally titled 'Employment Practices Data Protection Code'. The Code recognises that monitoring will usually be considered an intrusion, and employees are entitled to a degree of privacy at work – and can expect to keep their personal lives private. But it is all about balance. It states that any monitoring should have a justifiable benefit, and employees should be made aware of the nature, extent and reasons for it taking place. An employer will be in a stronger position with both a monitoring policy in place, and one that has specifically been brought to the staff's attention.

Individual and covert monitoring will rarely be justified on a random and deterrent basis unless there are exceptional circumstances such as suspicion of criminal activity.

Notwithstanding any breach of the code or the Data Protection Act (which governs how such information obtained should be stored), an Employment Tribunal may allow you to use information gathered for disciplinary purposes, depending on the facts of the case. On the other hand, an unnecessary and major breach of privacy might lead to claims being instigated by an employee for constructive dismissal, if it has made an ongoing relationship with the employer untenable.

If you are intending to keep a VERY close eye on your employees, make sure you are doing do lawfully.

For part two of this article, we will be looking at what employees can do to ensure they don't accidentally find themselves in hot water at work.

Telephone us in 01225 632240 to discuss how we can help you to ensure you have the right policies in place to protect your business and employees.

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