Following the news that retail giant, H&M, was fined £32.1million for illegally monitoring its employees in Germany, questions have arisen regarding what is acceptable in terms of surveillance in the workplace.
With many people now working from home, and those in the workplace having to follow COVID-19 guidelines, keeping on top of what employees are doing has become more of a challenge, but is “spying” on them the answer?
Can you legally monitor employees?
In the UK, electronic forms of monitoring involve the processing of personal information, which are regulated by GPDR. As monitoring is regulated in the UK, the Information Commissioner has issued the Employment Practices code, which sets out the steps that should be followed when keeping a watch over employees’ activities.
Other important legislation includes the Investigatory Powers Act 2016 and the Investigatory Powers (interception by Businesses etc for Monitoring and Record-keeping Purposes) Regulations 2018, which make it a criminal offence to intercept certain communications.
In short, it is not illegal to monitor employees, whether that be emails, internet use, telephone calls or CCTV. However, there are a number of steps that should be followed, such as impact assessments and informing employees that the monitoring is taking place.
The rules around CCTV
Covert recording is only permitted in very exceptional circumstances, such as where criminal offences (or something similarly serious) are occurring, and even then, only for short periods of time.
CCTV monitoring should only be carried out where privacy is low and is not usually permitted in areas such as changing rooms or toilets. Employees should be informed of such monitoring, but again exceptions are made for when serious criminal activity is taking place.
Lots of employers monitor telephone calls, but usually employees are informed and so are callers. This is the usual automated message that is heard when an individual calls a call centre.
Employers are able to periodically monitor emails and internet activity, but caution needs to be undertaken not to read private messages.
Article 8 of the Convention of Human Rights also preserves an individual’s right to privacy. This is not an absolute right and employers can often justifiably breach it, but there does need to be a very good reason, for example criminal activity.
The impact on employees
There is an implied term of trust and confidence which is included in every contract, and employers who unjustifiably monitor employees and/or act unreasonably, risk breaching that term, potentially allowing employees to bring claims for constructive or unfair dismissal.
For employers that are unsure of how to keep track of employees during the pandemic, they may need to seek specialist advice before deciding to undertake specific surveillance on their workforce. As H&M has shown, it can be a slippery slope to considerable fines if employers get this wrong.
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If you’d like guidance or support with what you cannot do to monitor your employees’ performance, our employment team can help.
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