When it comes to deciding whether you should conduct any employee monitoring, the key potential pitfall discussed is usually around data protection. Quite rightly, as this is an area of significant vulnerability and administrative/legal burden for an employer monitoring its workers.
But there are other potential issues as well.
1. Human Rights
Article 8 of the Human Rights Act 1998, enacting the same Article of the European Convention on Human Rights, provides that everyone has the right to respect for private and family life, home and correspondence, and that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
This provision certainly does impact, or potentially impact employee monitoring, particularly in respect of communications, even where these take place on a work-owned device or during the working day. It is unlikely to be justifiable to monitor/read communications that are obviously private in nature, and if you are monitoring communications, it is essential to be absolutely clear that you are doing so, in order that employees are fully aware and not corresponding in ignorance believing it to be completely private.
A right to a private life will also be relevant when it comes to CCTV (such as where cameras are pointed), and to vehicle monitoring (if you are tracking where someone is going outside work hours that will be a risk).
Article 9 of the same act provides for freedom of religion and belief and the right to manifest that belief, which may also be relevant, particularly when it comes to monitoring things like an employee’s personal social media accounts.
Linked to that is Article 10, which gives everyone the right to freedom of expression; freedom to hold opinions and to receive and impart information and ideas. Attempts to censor personal social media, or to penalise an employee for expressing views you disagree with, could fall foul of this provision.
2. Contractual issues
Having a clear policy on monitoring will help avoid any possible breach of contract claim, but there still remains a risk. Depending on the monitoring you are doing, it could be considered a breach of trust and confidence, which is a term implied into an employment contract. If there is a serious breach of trust and confidence, that could lead to a claim of constructive dismissal. Keeping monitoring to a minimum as strictly necessary, and being absolutely clear about what monitoring is done and why, will help avoid this issue.
3. Employee relations issues
It’s not just a case of whether there is a specific legal breach involved in monitoring. There are ‘softer’ risks involved. Excessive or unnecessary monitoring can be extremely damaging to an employment relationship. Employees may feel they are not trusted, may feel resentment towards their manager or the employer as a whole, and fostering an environment of distrust can have a devastating effect on productivity in itself, as well as on the level of goodwill you have with employees. Retention can suffer, wellbeing and attendance can suffer, and the impact of these is not to be underestimated.
Monitoring can be a useful exercise and can really help a business if used correctly and for the right reasons. But in addition to data protection concerns, the above additional issues should cause you to pause for thought before implementing any employee monitoring, avoid it if possible, and if you need to do it, limit it as far as you can.
If you need any further advice on the potential problems and risks involved with employee monitoring, do get in touch.