Is Covert Surveillance in the Workplace a Breach of Employee Rights?
Fiona Hamor
24/06/2019

Employee surveillance via IT equipment such as webcam access and screen captures, phones, vehicle tracking and even CCTV is not uncommon in the modern workplace as employers take advantage of developing technologies to monitor employee activities and performance, but in doing so, are they breaching employees’ rights?

Reasons for Covert Surveillance in the Workplace 

There are a number of reasons why an employer may wish to track its employees. Productivity concerns, worries about theft, health and safety, and ensuring activity during business hours is business related are all reasons why this may take place. 

Employers are also understandably concerned about bullying and harassment in the workplace and protecting the reputation of the business externally, so conduct when using company devices such as phones, laptops or otherwise may be monitored for this purpose and many companies now have a Social Media Policy in place which sets out rules about conduct on private social media accounts (such as Facebook, Twitter, LinkedIn, etc.).  

UK Laws on Surveillance 

There are a number of UK laws which are applicable when it comes to surveillance in the workplace, in particular the Regulation of Investigatory Powers Act 2000 and the Data Protection Act 2018.

There is also an implied obligation of trust and confidence between an employer and employee. Acting without proper or reasonable cause so as to damage the trust and confidence between the parties may amount to a fundamental breach of the employment contract, entitling an employee to resign and claim that he or she has been constructively dismissed.   

Employers should also be mindful of the Human Rights Act 1998 which provides individuals with the right to privacy, albeit qualified by various public interest considerations.   

Is Covert Surveillance Allowed? 

In light of the various legal protections, covert surveillance is a problematical issue for employers and should only be undertaken in exceptional circumstances where there is a compelling reason to do so.  An employer who embarks on covert surveillance must be able to demonstrate that the surveillance is necessary and proportionate to protect its business so as to justify the potential breach of employees’ privacy. 

First and foremost, the surveillance must be necessary.  If sufficient information or evidence can be obtained in another, less intrusive way, then surveillance should not be used.

The surveillance must also be proportionate. If hidden cameras are used, employers should consider whether there are any safeguards which can be put in place and make sure that the surveillance is limited so that it goes no further than is absolutely necessary to achieve the purpose for which it is being used.  

For example, an employer who suspects that an employee is stealing from a till should only conduct surveillance of the till area where that employee works during the employee’s working hours, and should not set up covert cameras to cover a wider area or to gather footage from a longer time period, particularly where that may involve surveillance of other employees.

Employees should be notified, usually in a staff handbook or privacy policy, that covert surveillance may be undertaken from time to time and where surveillance needs to be undertaken covertly, an employer should undertake and record a risk assessment for data protection purposes before proceeding with the surveillance. 

For further information about this issue and advice on employment law more generally, please don’t hesitate to get in touch with our expert team here at Pannone Corporate

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