Employee surveillance: how far can you go?
The Daily Telegraph has allegedly installed small wireless monitor detectors underneath employees’ desks for purposes of monitoring how much time they spend at their desk on a daily basis. The installation was done covertly and employees only found out about the operation after Googling the brand name they discovered on the detector. Needless to say, shocked employees were quick to condemn the actions of the Daily Telegraph, claiming the operation undermined trust between employer and employee, as well as questioning why they were being tracked in the first place.
What the Daily Telegraph has done is not illegal but it does raise some questions around employee surveillance from an ethical perspective. It is a grey area that can backfire if carried our incorrectly or insensitively.
Here is our advice for anyone thinking of following suit:
Understandably the idea of employee surveillance is controversial, particularly among workers, who feel it is an invasive and oppressive. Consequently it is important that employers thinking about bringing in surveillance practices should strike a balance between solving the problem and protecting employee privacy.
Know the law
Employers implementing surveillance systems need to take into consideration a number of legislations and laws, most notably the Data Protection Act 1998, which requires that personal information obtained by surveillance must be collected for specific purposes, monitored by a designated person or team, kept secure and should be retained for no longer than necessary.
Surveillance should only be used to pursue a legitimate purpose. It should not be used for vague aims or for an unlimited period. For instance, an employer can use surveillance in disciplinary proceedings if they believe it will uncover evidence of misconduct that is proportional to the means. The invasive monitoring an employee for a lesser misdemeanour, like taking five extra minutes for lunch, is not advised as the crime is not proportionate to the means.
The law on surveillance distinguishes between two monitoring practices: targeted surveillance (monitoring of an individual) and systematic surveillance (monitoring a group or total workforce). The surveillance being undertaken in a large majority of cases is systematic. Only in rare situations – criminal cases or issues of serious misconduct – is the use of covert and targeted monitoring deemed acceptable as it requires a high level of interference with the subject’s right to privacy.
Who to tell
When implementing surveillance systems in the workplace, we recommend that employers inform all staff and persons it will affect. Clear communications on the reasons for surveillance – assuming the reasons are legitimate – will help to reassure employees on the necessity, as well as their rights and level of disruption. Knowledge of surveillance systems should ensure appropriate behaviour without ever having to reprimand employees after catching them misbehaving – or worse – on film. Only in exceptional circumstances should an employer withhold information about surveillance from employees – such as if it is a criminal case or knowledge of the reason would put them at harm etc.
We advise employers to conduct an impact assessment to determine whether monitoring, and the level of monitoring, is necessary. This will include establishing the reasons, the level of intrusion, the aim, and the benefits (such as safeguarding resident safety). This impact assessment will be an invaluable tool if you ever have to justify your case before an Employment Tribunal. Remember, it is important to ensure that the means (the monitoring) is proportionate to the aim (what you are trying to uncover).
If an employer feels uncomfortable with surveillance cameras, they could consider less intrusive alternatives, such as encouraging a open and positive workplace culture, as well establishing robust whistleblowing procedures that encourage employees to speak out if they know of misconduct in the workplace.
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