As an employer, there will probably be times when you’ll want to check that your employees aren’t doing things they shouldn’t be doing whilst at work, or you might even want to check what a potential new recruit gets up to on social media. This is all well and good, but it is important to stay on the right side of the law when doing so. We’ve put together a guide that should help you avoid any sticky situations when monitoring employees and potential employees.
Monitoring of your workforce can take numerous forms, such as:
- Email and mail opening
- Website log checking
- Phone log checking
- Recording of telephone calls
- Bag searches
The first and most important things:
Employers do have the right to monitor employees in the workplace, but first before any monitoring takes place, ask yourself:
- what is the reason(s) for monitoring staff?
- what benefits will it bring?
- will it have a negative impact on staff?
- are there any less intrusive, alternatives to monitoring?
- is the monitoring truly justified?
- are staff aware that monitoring is or may take place?
Now consider your answers to the above questions carefully, as if it could be shown that your actions were unreasonable, or staff are not aware that monitoring is or may take place, then best not to carry out any monitoring unless you want to land yourself in trouble for what would likely be viewed as breaches of data protection and human rights legislation. If you can justify the monitoring and the employee is aware that the monitoring will or may take place, you will not usually need the consent of the individual(s).
So, what you need to do should you want to monitor your employees, is to make it clear that monitoring will or may take place together with the reason(s) for the monitoring. This can be done in the following ways:
- having a clause dedicated to this information in the employment contract; AND
- having policies available and easily accessible – for example, in your Employee Handbook. These policies may consist of the following:
- Right of Search
- Internet, Email and Company Systems
- Drugs, Alcohol and Substance Abuse
- Telephone and Mobile Phone Use
- Code of Conduct
- Ethical Policy
- Sickness Absence
- Data Protection
What does it mean if I monitor my employees with CCTV?
CCTV monitoring is the same as any other monitoring, you must make it clear that it is taking place and the reasons for doing so. This will mean that as well as taking the actions described earlier, you should also put up clear and easy to read signs indicating the locations of the cameras and inform staff of the reason(s) why CCTV monitoring is used. The Information Commissioner’s Office must also be informed of the reasons CCTV surveillance is in use.
However, it is important to remember that under the Data Protection Act if the employer gives a reason for the CCTV for example as being necessary to prevent theft, they cannot then use the footage for another reason such as recording time and attendance of employees. Misuse of CCTV footage can also give rise to claims of constructive dismissal.
How do I monitor electronic communications?
You can legally monitor electronic communications at work e.g. use of phone, internet, email and fax. However, this is only if:
- the monitoring is related to the business
- the equipment being monitored is provided partly or wholly for business purposes
- employees are aware that monitoring may/will take place as mentioned above
Therefore, providing that you stick to the rules mentioned above, you won’t need the employees specific consent. However, it must be for one of the following reasons that you are monitoring the employees’ electronic communications, and that it is not being done out of spite, resent or private reasons:
- to establish facts that are relevant to the business. Such as, to check that procedures are being followed and to check standards
- to prevent or detect crime
- to check for unauthorised use
- to make sure that electronic systems are operating effectively
- to check whether a communication received is relevant to the business – this means checking emails and listening to voicemails. However, you cannot record calls
- to check calls to confidential helplines. However, you are not allowed to record calls, only listen in
- in the interests of national security
Do I need to register with the Information Commissioner Office?
Under the Data Protection Act 1998 individuals and organisations that process personal data are required to register with the Information Commissioner Office (ICO), unless they are exempt. Often the fee for doing this is as little as £35.00, which is nothing compared to the fines that can be implied for breaches. Therefore, we would advise that you visit the ICO website by clicking on this link to assess whether you need to register:
If you are using CCTV monitoring in your business you will need to register with the Information Commissioner Office. Recently a small business owner in Coventry was prosecuted and fined £200 for failing notify the Information Commissioner’s Office of the use of CCTV monitoring in her store.
Can I monitor a potential employee’s activity on Social Media?
In short, yes you can. However, in order to avoid accusations of discrimination, you should be careful not to let any information that would not be viewed as relevant to performance affect your recruitment.
Monitoring a job candidate’s activity on Social Media does have its benefits and the information gained can be very useful. For example, LinkedIn can show you their experience, endorsements and even some references. It can also provide you with legitimate grounds for not considering a candidate, for example they go against your ethical policy by making comments that are discriminatory.
If you need assistance with getting the correct policies in place, are looking to obtain contracts of employment containing the appropriate wording, or you have an additional question we haven’t answered – please do not hesitate to contact us (01305 831706 or firstname.lastname@example.org).
Disclaimer: The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Rely Ltd accepts no responsibility for the content of any third party website to which this webpage refers.