Employee Email Monitoring: GDPR Compliance for UK Employers

Monitoring employee communications, such as emails, may seem necessary to protect your business. You might believe you have legitimate reasons to review staff emails, such as safeguarding sensitive information, ensuring data security, or verifying compliance with company policies. However, strict rules under the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA 2018) require careful consideration when monitoring staff emails. This practice can be high-risk and may worry your staff. This article explores critical considerations for employers implementing email monitoring, with consideration of the ICO’s guidance for employers. 

How Do Data Protection Law Rules Impact Monitoring?

The UK GDPR and the DPA 2018 form the critical legal framework for data protection law rules in the UK. These laws establish clear rules around monitoring employees, and your business must ensure that processing personal data is lawful, fair, and transparent.  

Suppose your business monitors employee emails for specific reasons containing personal information (such as the sender’s name or email address). In that case, the monitoring involves personal data and falls subject to UK GDPR rules.

Your business must also respect the Human Rights Act 1998, which protects employees’ right to privacy, and comply with other relevant rules around staff privacy.

Various rules apply to monitoring staff emails and monitoring generally, and the UK ICO has provided detailed guidance for employers to comply with. We explore these considerations below.

How Can Your Business Ensure Transparency?

Transparency is a core principle under the UK GDPR. Your business must inform employees about monitoring practices in a clear and accessible manner. Your privacy notice must be comprehensive and current, explaining the nature, purpose, and extent of monitoring, who has access to the data, the legal basis for processing, and how long you will retain the data.

You should also ensure your business is open about monitoring activities to comply with regulations and foster trust. Your company’s IT and communications policy should reinforce this by explaining the purposes of company monitoring and the types of monitoring conducted.

Although adding a monitoring clause in employment contracts is not legally required, your business should consider including one to ensure employees are informed of monitoring practices and relevant policies at the outset.

Covert monitoring must only be used in exceptional cases to prevent or detect serious crime and must always be justified and proportionate.

How Do You Consider a Lawful Basis for Monitoring?

Your business must establish a lawful basis for monitoring employee emails. Relying on consent is, however, generally inadequate. Your company may consider using legitimate interests as the most appropriate basis.

However, you must first conduct a Legitimate Interests Assessment to demonstrate that your business’s needs outweigh any potential harm to employees’ privacy. Your business must document the necessity of monitoring, the proportionality of the actions, and how you have minimised the impact on privacy.

When is a Data Protection Impact Assessment (DPIA) Required?

Your business must conduct a Data Protection Impact Assessment (DPIA) when monitoring is likely to result in a high risk to employees’ privacy. The DPIA will help your business identify and mitigate these risks.

During the DPIA, your business must assess whether monitoring is essential and proportionate, explore less intrusive alternatives, and document your decision-making process.

Your company should consult the Data Protection Officer if you have one and consider engaging with employees or their representatives, as this promotes transparency and trust.

Your business must consult with the ICO if high risks remain after mitigation.

How Can Your Business Ensure Monitoring is Proportionate and Necessary?

Your business must ensure that monitoring is proportionate to the legitimate aim and not more intrusive than necessary.

Before implementing monitoring, your business should consider whether less invasive options can achieve the same objectives.

To safeguard employee privacy, your business must limit access to monitoring data to authorised personnel only, such as HR managers.

How Can Your Business Balance Its Needs with Employee Privacy Rights?

Your business must balance its needs with employees’ privacy rights.

Your business should align monitoring with what employees would reasonably expect. Excessive or unjustified monitoring could lead to legal claims and damage to employee trust.

The ICO emphasises that your business must ensure fairness, transparency, and proportionality.

Your company must clearly document the reasons for monitoring, explain why less intrusive methods were not feasible, and describe how privacy impacts were minimised.

GDPR Essentials Factsheet

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Key Takeaways

Your business must navigate complex legal obligations when monitoring employee emails. You must ensure that monitoring is lawful, necessary, and transparent and that employees are fully informed of their rights. For high-risk monitoring, your business must conduct a DPIA and consider less invasive measures to protect privacy. If your company is unsure about its obligations, seeking legal advice can help avoid compliance breaches in this high-risk area.

If your business needs help understanding the rules around employee monitoring, our experienced data privacy lawyers can guide you through our LegalVision membership. For a low monthly fee, you gain unlimited access to tailored legal advice. Call us today on 0808 196 8584 or visit our membership page for more information.

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