Workplace surveillance: can your employer spy on you at work?


in
Legal

Updated 2014.

With CCTV cameras everywhere you go these days, how likely is it that your employer or client will be keeping an eye on you? Basically, quite likely. Employers can monitor staff through a variety of methods  – but it must do so in a way that is consistent with several legal requirements.

Many employers will choose to monitor phone and IT systems usage by their staff, and in some sectors employers will also use CCTV and other methods to monitor their products/goods.

Employers may choose to monitor their staff for any of the following reasons:

  • To safeguard their employees or members of the public (for e.g. health and safety reasons, prevent violence)
  • To protect business interests (prevent crime, theft or misconduct by employees or members of the public)
  • To ensure quality of customer services (which can also show training needs for their employees) and assess and improve productivity
  • To comply with legal and regulatory obligations

Most large employers now will have a Social Media Policy which may include monitoring of employees usage of networking websites (and so on). Many employers will also have an IT and Communications Policy also setting out how employees can use their systems.

The laws that cover the area of monitoring include:

  • The Regulation of Investigatory Powers Act 2000 (RIPA)
  • The Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 (LBP)
  • The Data Protection Act 1988 (including the 2003 Code, Monitoring at Work) – Employers must act in accordance with the DPA and its 8 key principles.

The implied legal obligation of trust and confidence that exists between an employer and employee is also relevant – Employers should not act without reasonable and proper cause, in a way which is likely to destroy or damage the relationship of mutual trust and confidence between themselves and their employees.

However, The Human Rights Act 1998 also plays an important role here as it gives individuals’ a right to privacy and the UK’s laws try to recognise that employees may feel that monitoring by their employer at work is intrusive.

Therefore, employers need to find a balance between an employee’s legitimate expectation to privacy and the Employers interests when they monitor their staff, in any way.

Because of the need for this balance, the current UK laws distinguish between:

  • Targeted monitoring (of one individual) and systematic monitoring (where all employees or groups of employees are regularly monitored in the same way)
  • Open and covert monitoring
  • The monitoring of already-accessed communications and the monitoring or intercepting of un-accessed electronic communications (e.g. telephone calls, faxes, emails and internet access).  An ‘interception’ happens when the contents of the communication are made available to someone other than the sender or intended recipient. The sender and recipient of the communication must consent to the interception for this to be lawful. ‘Interceptions’ are highly regulated under the RIPA and LBP laws (above).
All these monitoring types can be lawful.

Therefore when Employers set up monitoring systems they must (to ensure the monitoring is legal):

  • Carry out an ‘impact assessment’ to justify the use of CCTV/monitoring – which identifies the purpose behind the monitoring and likely benefits and adverse impacts; alternative ways in which the purpose might be achieved; the obligations that will arise from monitoring e.g. notifying employees, managing data, subject access requests (SAR) by staff; whether the decision is justifiable.
  • Tell staff the nature, extent and reason for the monitoring that may take place.
  • Ensure the monitoring is related to the business and where the equipment being monitored is partly or wholly provided for work.
  • Be clear what levels of privacy an employee can or cannot expect when using their employer’s systems to make personal communications and when using restrooms or break areas.
  • Provide an unrecorded telephone line for employees to use in emergencies if all other telephones are routinely recorded/monitored.
  • Be clear what levels of email/internet/phone usage by the employee for personal reasons is permitted and what is not
  • Provide written policy statements about the monitoring
  • Explain how the employer will use the information obtained via monitoring.
  • Ensure those involved in the monitoring are aware of their confidentiality obligations.
  • Explain how the information will be stored and processed in accordance with the Data Protection Act.
  • Allow employees to voice any concerns they have, in confidence, and ensure they are given the chance to explain or challenge any footage used as part of a disciplinary process.  Employers, however, are not required to get consent from the employees to monitor them if the above steps have been carried out.

Targeted monitoring

Generally, monitoring should normally be carried out by an employer in an open and systematic way only, unless targeted and/or covert monitoring is justified.

Targeted monitoring will usually only be justified where there are grounds to suspect criminal activity or serious malpractice by the employee in question and the monitoring is necessary to prevent or detect this crime or malpractice. Such monitoring should be only carried out to a set timeframe and as part of a specific investigation and that the risk of intrusion on ‘innocent’ workers is considered.  This monitoring would usually then lead to a disciplinary hearing where the employer believes the employee has breached company policies.

If this targeted monitoring provides information inadvertently of other malpractice by other workers, this evidence should not be used against those workers unless it is a case of serious gross misconduct.  Where the misconduct is minor in nature, use of the ‘secret’ footage to discipline workers will generally not be allowed.

Surveillance of staff outside of the workplace may also be acceptable if the employer can demonstrate it was ‘justifiable’ (they have credible reasons to suggest an employee is involved in wrongdoing or breaching company policies) and ‘proportionate’ (the employer did not go any further than was necessary in its use of surveillance).

Basically, any monitoring that is done by the employer must be proportionate to the issue the employer seeks to address.

If you need help you can contact the Information Commissioner’s Office, the UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

If you are an Employer and need ongoing professional help with any staff/freelance issues, or a Contractor/Freelancer/Employee with a complicated employment related problem, then talk to Lesley at The HR Kiosk  – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

  • ROBET

    i have been given a written warning for starting our shift 20 min late on 2x ocassions and also allowing the men on my shift to have an extra 15 min 2x for tea breaks as i was in charge of the shift on nightshift i was the only one given a written warning at no time when the cameras were put in place were we told they would be used to monitor workers only for security reasons and as far AS I AM AWARE NEVER WAS THEIR A IMPACT ASSESSMENT DONE ON THE EFFECT THIS WOULD HAVE ON THE WARKFORCE IS THIS GROUNDS FOR AN APPEAL ON MY PART AS THEY ONLY FOUND ME GUILTY WITH CAMERA EVIDENCE

    • lesleyfurber

      Hi Robet, well you have a right to appeal anyway so yes this is certainly something you can raise. Good luck. Regards, Lesley, Workline

  • Yvonne

    Any help would be appreciated …Yesterday evening I got to work, to find my job list entailed, among Frying, scrubbing floors washing up and generally cleaning everything to close up for the night, at the fish shop I work in. An extra job was to strip all the area around the rumbler, tiles potato table, tiles on the walls and floor, giving it a proper good scrub as I do once a week. Today at home i received a text message on my mobile, it read “What time did the tiles in back get done? do i need to check on the video?” I did the job as always, and I did it properly. My Boss Picks at everything I do because she hates me I always do my work correctly and all the dirty jobs are allocated to me, no’one else get these jobs to do, they just get the general jobs . I have many notes She has left for me in the past. but todays text while i am at home “What time did the tiles in back get done? do i need to check on the video?” is this legal?

    • lesleyfurber

      Hi Yvonne, it’s going to depend if you knew that there was video coverage being taken in the shop and what it is used for. Regards, Lesley, Workline

  • lucy

    there is a shop in our area that the shop keeper has used sound on the cctv and used it against his staff he told 1 member of staff what the other 2 were saying he then cut the lads hours as a result of this is he allowed to use the sound and is he allowed to tell other people what he has heard?

    • lesleyfurber

      Hi Lucy, the answer is probably yes to both, if the staff are aware that the CCTV camera is there and what it is used for. Regards, Lesley, Workline

  • les

    without notice cctv cameras are being installed at my work place , i only found this out as i return to work after i had finished ,the men who where there doing this said they where working alnight to get the cameras up and running by morning,i said that nobody said anything about cameras being installed ,and the man said the boss did’nt want anybody to know ,and that they where more cameras then needed inside and out ,even looking at the toilet door and 4 in the canteen and one camera at each work station ,he also said that it will cover every single square foot and even some cameras that you cant see ,should we have been told of these cameras before

    • lesleyfurber

      Hi Les, yes your employer should have informed you the cameras were going up and the reason for them. Regards, Lesley, Workline

  • sandra

    can my supervisor take pictures of me without permission

    • lesleyfurber

      Hi Sandra, it’s going to partly depend on the reason the picture was taken. Regards, Lesley, Workline

  • Disgruntled

    We currently have security camera’s around our workplace in strategic
    positions to monitor the entrance’s etc, and also one by the clock
    machine which everyone is happy with, however, yesterday a camera was
    installed pointing directly at the smoking shelter. The only reason we
    can imagine this was put there is for monitoring the length of
    employee’s breaks . Is this legal ? Can they discipline someone for over
    staying their break by getting caught on camera ?

    • lesleyfurber

      Hi Disgruntled, thanks for your message. They should tell you that the camera is there and why. But yes, they could discipline you using evidence from the camera for over-staying a break. Regards, Lesley, Workline

  • asktina1st

    can I put a cctv in passage outside guests shared bathroom in my guesthouse as we have found guests trying to break into our linen cupboard digital padlock and also a guest slept in an empty room as it was left unlocked but the door was closed. Guests can also try to break into rooms at night time as our staff are here 9am to 8pm only and though some of us live here we do not usually go upstairs to the guest rooms after 8pm as we stop work at 8pm.

    • lesleyfurber

      Hi Tina, thanks for your message. I’m afraid I can’t answer this for you as this comments section is for employment related queries. However this would sound a perfectly reasonable thing for you to do – I would search for a more appropriate forum to get the answer though. Regards, Lesley, Workline

  • NicholasWarner

    I, like many bus drivers in London are being spied on when, for example, a complaint or some other incident happens on a Vehicle that has some cost – the company looks at footage before and after said event and when finding a staff infringement disciplines driver for another altogether unrelated event as happened with me. I was sacked last year for using a mobile in the cab of a broken down vehicle. As the company investigated the engine breakdown they caught me in the cab with a mobile, I actually won my job back through an Employment Tribunal but not for a data protection act reason. Could I have a case against said employer?

    • lesleyfurber

      Hi Nicholas, thanks for your message. If you went to Tribunal about this did they not have a view on the CCTV footage? Regards, Lesley, Workline

      • NicholasWarner

        No they did not. It seems the Industrial Tribunal system being a lower court can kind of make up their mind based on “impressions” not actual hard law – for example it is not a criminal offense to use a mobile phone whilst in the driver’s seat or cab of a vehicle if the engine is off and yet there are and have been many occasions that drivers of PCV or Bus have been successfully sacked because a company rule of no tolerance has been breached. In my case I had a good case And a good judge – I did not have a barrister. The judge pointed to a precedent set in a higher, Employment Appeal Tribunal (EAT). The issue of law relating to misuse of Data Protection Act like that of the road traffic act does not seem to apply in an Employment Tribunal. It may, however be true that criminal or civil law is taken into account in an Appeal Tribunal. Unfortunately I am not qualified to say.

        • lesleyfurber

          Hi Nicholas I would suggest you contact http://ico.org.uk/ as they are the UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals. Regards, Lesley, Workline

  • Lisa Robertson

    Hi, can my son’s employers watch him on cctv, he has got to go through a referral now, just because of a reaction to a comment from a customer, by reaction I mean, a customer came to his place of work and said, “can’t stop to talk to you, it might get you into trouble” my son put his head to hand as if to say “what’s going on now” (there are a few issues at the workplace at moment) and because of that they are saying that he has been talking outside work just because of that…is this legal to watch him on and also to continue to take it to the extreme?

    • lesleyfurber

      Hi Lisa, thanks for your message. There are circumstances his Employer can use CCTV and they are explained above – but the Employer must tell the employees what they are doing and why. Good luck. Lesley, Workline

  • jane

    Hi, I work for a large company with multiple store locations. A while ago they introduced a monitoring policy. I have cctv in my store to monitor customer theft which was fitted with my companies agreement although not by them. Currently the company is being audited and my area manager has said she is coming with an auditor to review the footage. I have cooperated with this request even though the visit will occur when i am on annual leave.
    On saturday i was doing a quick cctv check, mistakenly hit the wrong time on one camera and discovered two men in my shop after hours fitting a secret camera above the till area. Although i am certain we have no staff theft around the till, this has made me feel really sick considering i have a camera trained on the till anyway and they will be reviewing that footage. Do i have any rights? I have chosen to work under cameras but the fact a secret one has been fitted has made me feel violated.

    • lesleyfurber

      hi Jane, thank for your message. I presume that nobody knows that you now know about the secret camera? The only thing you can do really is find someone you trust in a more senior position to talk to and explain what you know now and ask for their advice. It’s something the company should not have done unless they have suspicions of wrong-going. Good luck. Regards, Lesley, Workline

  • Bigfrank

    I work on engineering in a bus garage and the potted history of surveillance is as follows; firstly, and with full understanding and compliance they were fitted outside all around, mainly the big old type ones seen in all industrial areas. Some of these were uprated to more sophisticated dome ones. Then on 2 occasions, again with good reason and prior notification covert ones were fitted inside the garage to catch a thieving employee, and illicit “clocking in/out” although the latter one was later used against someone washing their car (doh!) . More recently however and without prior consultation or full information, dome cameras were fitted all around the workshop “for Health and Safety reasons” which is still understandable, although a bizarre “Kai Zan” talk just after they were fitted seemed to me to hint that software is available that can show the path of any given person walking about…I hope not. The most recent events though I feel truly violate our privacy, and that was the fitting of one in our rest room (NOT toilet, this isn’t the US) which is just a room with chairs, tables, a modest 32″ TV supplied by the social club and various cooking/cooling appliances provided by ourselves. There was no prior warning of this but as ever “H&S” was quoted as the reason despite the camera pointing away from the most dangerous item in there , the tea water boiler , and the possible theft of the of the equipment. All this came to a head when the depot engineering manager called us all to a meeting basically to tell us we were crap, but we refused to hold the meeting initially because of the camera which had been “coming out soon” for over a month. In view of the imminent removal, he authorised covering the camera, enlisted his foreman to find some tape who in turn got an employee to tape the cam. This resulted in the suspension of the manager. two foremen and a fact finding for the employee, despite assurances that the camera isn’t being constantly monitored at HQ or somewhere. We have now boycotted the room but the company seem in no hurry to remove the camera which has destroyed what little industrial relations we had. We also have good reason that the sound is being used because the employee was questioned about not using a stepladder to do the deed, something I had actually joked out loudly at the time, with my back to the camera. Maybe its all above board, “Dave” has made sure of that with his employer favouring legislation but all we want to do is have just some place to relax without being constantly monitored and I for one am feeling genuinely stressed by it all and wish I could leave but I guess its the same everywhere.

    • lesleyfurber

      Hi Bigfrank, you could contact the Information commissioners if you want to see if there is anything that can be done about this – details are above. Regards, Lesley, Workline

  • Lisa

    Hi – I work for a small recruitment company and they installed a camera about a year ago, since then everyone else has left except me and another person as I find it quite intrusive. They keep telling me they havent got it on but I can hear myself ecoing when I speak to them on the phone. Can I tell them to take it down?

    • lesleyfurber

      Hi Lisa, thanks for your message. I don’t think you can tell them to take it down but you can ask them why they need it, what their reasons are – it might be worth pointing out that people are leaving because of it! Good luck. Lesley, The HR Kiosk