Employee monitoring – how to do it right

The recent furore regarding the MP Neil Parish, who resigned in the wake of allegations that he watched pornography in parliament, has brought back into focus the issue of staff surveillance and monitoring.

There are various reasons why an employer might want to monitor emails and use of the internet. Such monitoring may be implemented to ensure that staff do not access pornographic or other material that might be deemed inappropriate, but it may also be used to analyse productivity or to check compliance with confidentiality obligations or restrictive covenants.

With the use of social media almost ubiquitous and homeworking commonplace (in some cases, the norm) the traditional boundaries between personal and work spheres are becoming ever more blurred.

Various legal issues need to be considered in this context, including the duty of mutual trust and confidence (which is implied in every employment contract) data protection and the right to privacy, which is enshrined in the European Convention on Human Rights.

In determining the extent to which any monitoring is lawful, there is a need to balance the employer’s business interests against a worker’s legitimate expectation of privacy.

It is clear that while employers are allowed to monitor staff, the right to do so is not unrestricted, and is subject to the need to be open and transparent about the reasons for carrying out such monitoring and the methods used.

Employers should bear the following points in mind in connection with staff monitoring:

• The monitoring must be relevant and not excessive – in other words it must be proportionate to the legitimate aim being pursued.
• Carry out a full assessment what you need and why you need it.
• Ensure that the purpose and extent of any monitoring is clearly defined and agreed at senior management level.
• Staff must be told what monitoring is taking place, what data is being captured and how it is being used.
• They must also be told clearly how they are expected to behave, for example in relation to the use of social media, use of work email accounts for personal business etc. If there are any “red lines” then clearly set these out.
• Make sure that your employment contracts contain clear and relevant obligations and that you have in place clear policies that are readily accessible to staff.
• Make sure you keep your rules and policies on monitoring under review and ensure that you follow them.
• Data obtained through monitoring should only be used and retained for the defined purposes and stated periods of time.