With CCTV cameras everywhere you go these days, there is a strong possibility that your employer is keeping an eye on you. Employers can monitor staff through a variety of methods, but these methods must do so in a way that is consistent with specific legal requirements.
Dan Hardman, Operations at CCTV Wales explains what employers can and can’t do from a legal perspective along with guidelines on the most appropriate systems.
Many employers will choose to monitor phone and IT systems usage by their staff, and in some sectors employers will also use CCTV and other methods to monitor their products or goods.
The main reasons that employers may choose to monitor their staff are as follows:
- To safeguard their employees or members of the public for health and safety reasons for example, or to prevent violence;
- To protect business interests ie preventing crime, theft or misconduct, or misappropriation of intellectual property and business secrets, by employees or members of the public; ensuring that Company policies are not broken;
- To ensure quality of customer services (which can also show training needs for employees) and assess and improve productivity;
- To comply with legal and regulatory obligations.
Most large employers now will have a Social Media Policy which may include monitoring of employees’ usage of networking websites. Many employers will also have an IT and Communications Policy also setting out how employees can use their systems.
Legal Parameters for the use of CCTV in the Workplace
The laws that cover the area of monitoring in the workplace include:
- The Regulation of Investigatory Powers Act 2000 (RIPA)
- The Telecommunications (Lawful Business Practice) – Interception of Communications Regulations 2000 (LBP)
- The Data Protection Act 1988 (including the 2003 Code, Monitoring at Work) – Employers must act in accordance with the DPA and its 8 key principles.
The implied legal obligation of trust and confidence that exists between an employer and employee is also relevant. Employers should not act without reasonable and proper cause, in a way which is likely to destroy or damage the relationship of mutual trust and confidence between themselves and their employees.
However, The Human Rights Act 1998 also plays an important role as it gives individuals’ a right to privacy and the UK’s laws try to recognise that employees may feel that monitoring by their employer at work is intrusive.
Therefore, employers need to find a balance between an employee’s legitimate expectation to privacy and the employers interests when they monitor their staff, in any way; and there must be a legitimate purpose for the monitoring.
Because of the need for this balance, the current UK laws distinguish between:
- Targeted monitoring (of one individual) and systematic monitoring (where all employees or groups of employees are regularly monitored in the same way)
- Open and covert monitoring.
- The monitoring of already-accessed communications and the monitoring or intercepting of un-accessed electronic communications (e.g. telephone calls, faxes, emails and internet access).
An ‘interception’ happens when the contents of the communication are made available to someone other than the sender or intended recipient. The sender and recipient of the communication must consent to the interception for this to be lawful. ‘Interceptions’ are highly regulated under the RIPA and LBP laws mentioned previously,
Measures Employees Need to Take
All these monitoring types are deemed lawful. To ensure they comply with legislation, employers therefore should:
- Carry out an ‘impact assessment’ to justify the use of CCTV or monitoring which identifies the purpose behind the monitoring and likely benefits and adverse impacts; alternative ways in which the purpose might be achieved; the obligations that will arise from monitoring e.g. notifying employees, managing data, subject access requests (SAR) by staff; whether the decision is justifiable (compared to the adverse effects the employees may experience).
- Tell staff the nature, extent and reason for the monitoring that may take place. Staff do not lose their right to personal privacy when they walk through their Employer’s doors and this must be balanced with the Employer’s right to ensure their employees are not engaging in misconduct.
- Ensure the monitoring is related to the business and the equipment being monitored is partly or wholly provided for work.
- Be clear what levels of privacy an employee can or cannot expect when using their employer’s systems to make personal communications and when using restrooms or break areas.
- Provide an unrecorded telephone line for employees to use in emergencies if all other telephones are routinely recorded/monitored.
- Be clear what levels of email/internet/phone usage by the employee for personal reasons is permitted and what is not
- Provide written policy statements about the monitoring
- Explain how the employer will use the information obtained via monitoring. An employee may be aware that CCTV cameras exist, for example, but this will not justify an Employer using CCTV footage in a disciplinary process if the employee was never told the footage could be used for that purpose. For example, an employee is entitled to assume the CCTV will be used for security purposes only unless they are told otherwise.
- Ensure those involved in the monitoring are aware of their confidentiality obligations.
- Explain how the information will be stored and processed in accordance with the Data Protection Act, and who has access to this information.
- Allow employees to voice any concerns they have, in confidence, and ensure they are given the chance to explain or challenge any footage used as part of a disciplinary process. Employers, however, are not required to get consent from the employees to monitor them if the above steps have been carried out.
Generally, monitoring should normally be carried out by an employer in an open and systematic way only, unless targeted and/or covert monitoring is justified.
Targeted or covert monitoring will usually only be justified where there are grounds to suspect criminal activity or serious malpractice by the employee in question and the monitoring is necessary to prevent or detect this crime or malpractice. Such monitoring should be only carried out to a set timeframe and as part of a specific investigation and that the risk of intrusion on ‘innocent’ workers is considered. This monitoring would usually then lead to a disciplinary hearing where the employer believes the employee has breached company policies.
If this targeted monitoring provides information inadvertently of other malpractice by other workers, this evidence should not be used against those workers unless it is a case of serious gross misconduct. Where the misconduct is minor in nature, use of the ‘secret’ footage to discipline workers will generally not be allowed.
Personal data collected through monitoring must be for legitimate purposes and cannot be used for any other purpose than originally intended.
Surveillance of staff outside of the workplace may also be acceptable if the employer can demonstrate it was ‘justifiable’ (they have credible reasons to suggest an employee is involved in wrongdoing or breaching company policies) and ‘proportionate’ (the employer did not go any further than was necessary in its use of surveillance).
Basically, any monitoring that is done by the employer must be proportionate to the issue the employer seeks to address.
Employers seeking further advice and guidance should contact the Information Commissioner’s Office, the UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.
Once you are clear on what you can and can’t do in terms of monitoring employees in your particular workplace environment, the team at CCTV Wales has direct experience of working with a number of organisations to help them identify the most appropriate system for them.
Just give us a quick call on the number below or request a free consultation by clicking here.