Are you aware of the rules around covert monitoring of employees?

It is sometimes permissible but only in exceptional cases where an employer has very good reason to do so.

Implied rights

An employer should remember that employees are entitled to enjoy a measure of privacy, even at work. In addition, implied into every contract of employment is an obligation that an employer and employee should treat each other with mutual trust and confidence. To simply spy on an employee without good reason will almost certainly destroy that relationship and may expose an employer to a claim.

Regulation of electronic communications and privacy

In addition, generally speaking, if an employer wanted to record electronic communications then they need to navigate a number of laws that regulate how such information is permitted to be used. Briefly, an employer should:

  • inform employees that they may be monitored on work IT systems;

  • not actually monitor or intercept communications without permission or ensure that any interception is only for permitted business purposes;

  • process any information reasonably and lawfully under the Data Protection Act if the information includes personal data; and

  • respect the employee’s right to privacy.

There are criminal and civil penalties involved for employers who fall foul of these laws.

Is it necessary and proportionate?

An employer will usually have quite a lot of systematic information at their disposal gathered without the need for covert monitoring, for example through monitoring performance or for regulatory reasons. It is therefore rare that an employer will have to rely on potentially risky covert surveillance. The Information Commissioner Office - the ICO (which regulates information rights in the UK) underscores that point by stating that actual covert monitoring should only be used in exceptional circumstances. It suggests that employers conduct impact assessments’ to justify whether monitoring is necessary or proportionate.

The ICO's employment code of practice can be found here.

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