How Can an Employer Monitor Their Staff at Work in England and Wales?

As an employer, there are times when you may need to carry out employee monitoring in the workplace. This can include monitoring your remote workers. Monitoring your workers allows you to understand employee activity, enabling you to understand employee productivity and employee performance. Likewise, monitoring your workers’ activity may also help you spot where they are misusing workplace equipment, such as sending too many personal emails. There are rules in place which you should understand when carrying out workplace monitoring. Monitoring is not covered under one area of law but instead a variety of areas of law. This can make understanding monitoring and the rules concerning this confusing and challenging. This article will explain when you can monitor staff at work, how you might do this and some of the rules surrounding employee monitoring. 

Can an Employer Monitor Their Staff at Work?

As an employer, you may decide to monitor your workers. It is legal for you to monitor or conduct surveillance on your staff. Sometimes, there is a legal duty to monitor your workers’ activity. This can be because, as an employer, you can be found liable for your employees’ activity, such as if they make defamatory comments about another employee. This is called vicarious liability. Where an employer does not monitor workers’ activity where they should, they could find themselves in trouble regarding their legal role as a company director.

However, there are rules if you choose to monitor your staff. Monitoring your staff covers several areas of law, not just employment law.

Additionally, your employment contracts should detail how you may monitor your workers’ activity. Where you do not detail this, and your workers are unhappy that you are monitoring them whilst at work, they may feel forced to resign. Consequently, you risk your ex-employees pursuing a claim for unfair constructive dismissal. Also, where your staff have a reasonable expectation that their privacy should be respected, you should not be monitoring them. Where you monitor your staff and do not follow the rules regarding this, your workers may claim, for example, discrimination or false imprisonment.

Ways an Employer Can Monitor Their Staff

You may decide to monitor your workers in the workplace in various ways. You may choose, for example, to monitor through:

• CCTV;
• drug tests;
• searches such as bag searches;
• browser history; or 
• reading emails they write or receive.

Monitoring Staff Through CCTV

If you monitor your staff through CCTV in your building, you should clearly explain this in their contract or staff handbook, so they know you monitor in the workplace. There are places where you cannot monitor your staff through CCTV. For example, you cannot watch your staff through CCTV in the toilet, as this breaches data protection law.

Monitoring Staff Through Drug Tests

You can only monitor your staff at work with the use of drug tests where they have consented to them. This will generally be where you have a full contractual health and safety policy in place. If you wish to implement drug tests in your workplace, you should clearly state these details in your staff’s employment contracts or a staff handbook.

Additionally, where you do carry out drug testing in the workplace, you should ensure that you:

• only test employees who require testing;
• test on a random basis; and 
• unless your worker’s role requires them to have a test, do not single out specific workers to be tested.

Monitoring Staff Through Searches

If you choose to monitor your staff through searches, there are some requirements you must meet. You must:

• respect privacy;
• carry out the search by a person of the same sex as the person you are searching; and
• have a witness present when you carry out a search.

Monitoring Staff Through Websites and Emails

Further, let your staff know you monitor their internet usage. Your company policy should detail points about the use of websites and writing emails, such as whether your staff can write personal emails or make personal telephones. You may also want to state the types of websites which are not allowed to be accessed.

Where you monitor your staff through their use of websites and emails, you are processing data. This means you must do so within the boundaries of data protection law. Therefore, you must have a specific, explicit and legitimate purpose for processing the data. This could be, for example, to make sure that your staff are carrying out their role as obliged to under their employment contract.

Key Takeaways

Monitoring staff in the workplace is something that you are likely to undertake as an employer. There are also times when you may be required to ensure that your staff are not making comments about other staff or clients, which you could end up taking responsibility for. There are various ways to monitor your staff, such as through CCTV monitoring or checking their emails and their use of the internet. However, whilst it is legal to monitor your staff at work, you must let them know that you are doing this. Further, you must comply with the rules surrounding monitoring staff at work. This is a tricky area to get to grips with as the rules come from various areas of law.

If you need help with the legalities of monitoring your staff at work, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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