Advances in technology and communications have only made the issues more complex. The inexorable rise in the use of computers and the internet, CCTV and mobile phones has dramatically increased the level of communications and, with it, the scope for monitoring staff at work. It is incredible to think that only 15 or 20 years ago, computers were not the norm at employees' workspaces. In 2009, an estimated, mind-boggling, 90 trillion e-mails were sent worldwide. The result is that workplace monitoring is massively on the rise.
Even outside of the employment arena, it is widely reported that the average citizen in the UK is caught on CCTV 300 times a day.
Employees are monitored in many ways: opening staff e-mails or listening to voice-mails; examining logs of websites visited; recording their activities on CCTV; and, in more extreme cases, searching them, their personal space and their work areas. There has also been a significant increase in the number of employers wishing to track employees' vehicles.
In addition to this, there is an increasing emphasis on background checks both before and during someone's employment. Much of this arises out of employers' fears about radicals on all sides of the political divide.
Earlier this year, a barristers chambers in Birmingham parted company with a senior barrister who announced that he was intending to stand for a seat on behalf of the BNP at the general election. The sensitivity of such allegiances is highlighted by the chambers' announcement, in which it was very keen to distance itself from the barrister's opinions.
Many employers fear even greater consequences tat might arise from an employee's radical beliefs or background, such as the employment becoming a conduit for illegal, or even terrorist activities.
In March 2010 a British Airways employee stood accused of advising and counselling terrorist acts relating to his employment with BA. The employee concerned was an IT developer with access to the company's computer systems and details about security procedures. The serious concern was not only that the employee had radical beliefs, but that he was using his position for the furtherance of terrorist-related activities.
This is all frightening stuff, but against that background, is it right for an employer to know, or be able to find out, what an employee has said in an e-mail to his loved ones? Would you be happy knowing that your employer might listen to your private conversations? Most of us would not. Similarly, should employers be able to look into our personal history and background?
If all of this all sounds a bit sinister, it isn't hard to see why an employer may be tempted to monitor extensively. Assessing employee performance and conduct, keeping track of time spent by employees on non-work activities, and preventing the distribution of illicit or illegal material, are all common objectives behind a decision to implement monitoring in the workplace.
The allure of monitoring is even more understandable given that the employer is often liable in law for the actions of its employees.
Despite its appeal however, any decision to monitor should be taken with caution and with a full understanding of the consequences and obligations it entails. There were over 150,000 Employment Tribunal claims in England and Wales last year. Of course, not all of these claims arose out of improper monitoring, but the point is that employees are increasingly aware of their legal rights and will take steps to protect those rights where necessary. With the highest award of £1,353,000, made in a race discrimination claim, the amounts potentially involved make it essential that employers follow the rules correctly.
The subject of monitoring employees' activities spans many areas of legislation. As well as involving most strands of employment legislation it takes in, to name but a few, the Data Protection Act 1998 (for unlawful processing of personal data), Regulation of Investigatory Powers Act 2000 (for unlawful interception of a communication) and, last but certainly not least, the Human Rights Act 1998.
Monitoring staff sensitively
Employees have a right to privacy and this goes beyond privacy at home. Under the Human Rights Act every individual has the right to respect for their private and family life, their home and their correspondence. This right extends to communications at work.
In practice, our private lives and work lives are often difficult to separate. It is essential that employers assess how much the proposed monitoring will affect employees' right to privacy. A wise employer should involve its human resources team at the outset, not only to ensure compliance with the bewildering amount of employment legislation but also to ensure best practice.
Employers who fail to follow monitoring best practice risk claims to the Employment Tribunal (including for unfair dismissal, constructive dismissal or discrimination) or investigations and orders for compliance by the Information Commissioners Office.
The key to avoiding these problems lies in transparency and consistency.
First, communicate openly with employees about any monitoring proposals you might have and always consider whether monitoring is necessary in any given situation. Letting employees know you might monitor their practices is a critical factor in determining the fairness of any monitoring.
Equally, to avoid any suggestion of victimisation or discrimination, consistency is essential. Inconsistency may lead to suggestions of victimisation and discrimination, for example claiming that the employer is only monitoring a particular person because of their gender or race.
Bearing in mind that there is no limit on the damages in any claim for discrimination, the consequences of getting this wrong are, aside from the adverse publicity, financially very significant.
Using monitoring as a 'fishing expedition' to discover wrongdoing, without other evidence, is likely to be seen as unreasonable.
Where background checks are being carried out great care should be taken to ensure that the employee, or potential employee, has consented to the information being sought. Ideally this consent should be in writing or the employer risks the employee disputing that consent was properly given.
Is monitoring necessary?
Monitoring should only be conducted when necessary and only once alternatives have been considered. Employers should assess whether benefits of monitoring are proportionate to any adverse impact on employees.
A decision by management to trawl through staff e-mails to discover who has been eating the clients' biscuits, for example, would not be appropriate. The blanket monitoring of all employees within a company is also rarely appropriate, and the reading of personal e-mails should be avoided unless the circumstances are exceptional.
Alternative or less intrusive approaches should be considered. In relation to the monitoring of e-mails a company may decide to review traffic data, such as volume of e-mails sent and received, and subject headings before actually reading the content of e-mails. It may consider potential electronic means of filtering harmful e-mails before the need to review them with live monitoring ever occurs.
Some businesses adopt an approach of using one-off spot checks, rather than continued reviews, which is more likely to be regarded as reasonable. Spot-checking is a good way of avoiding suggestions of victimisation or discrimination, as all individuals can be expected to be subjected to one at some point.
How to deal with offending members of staff
- If, as a result of monitoring, an employer discovers that members of staff have been involved in misconduct, the company disciplinary procedures (or, if none exist, the Acas Code) should be invoked.
- The employer should investigate fully and if necessary proceed with formal disciplinary action.
- An employee should be given the opportunity to see the evidence against them in order to respond to allegations of wrongdoing.
- Human resources staff will usually be involved in consulting with the individual and orchestrating the disciplinary process.
- If there are sufficient grounds to suspect criminal conduct the appropriate authorities should be notified at the earliest opportunity to secure any evidence.
Mike Cummins is a partner in the employment department of Freeth Cartwright LLP.