Employers are increasingly seeking to monitor the behaviour of their employees in order to ascertain whether they are breaching any company policy, committing a crime or downloading inappropriate material from the Internet.

Whilst the monitoring of employees may seem justified to some employers in particular cases, such interference may amount to an unacceptable infringement of privacy to the employee. The Data Protection Act 1998 provides that information about an individual employee must be processed “fairly and lawfully”. In order to achieve this, employers must ensure that they obtain clear consent from each of their employees before the monitoring takes place. We would always recommend that this is obtained in writing to avoid any ambiguity.

The Office of the Information Commissioner (formerly the Data Protection Commissioner) has published a Code of Practice on the use of personal data in the employer/employee relationship.

Ultimately, the covert monitoring of employee behaviour can only be justified in very limited circumstances.

What can we do for you?

We can provide you with suggested steps to ensure that any covert monitoring that you might be proposing, does not fall foul of the law. This will include making sure that all employees have given consent to their personal data being processed in accordance with the Data Protection Act 1998. We can also discuss the purposes of the monitoring and how this will be conducted as well as looking at whether the monitoring that you wish to undertake can be performed in a less obtrusive manner.

Employers should be aware of the effect that covert monitoring may have on an employee who is suspected of a crime or a breach of company policy without reasonable grounds. In every employment relationship, there is an implied duty of mutual trust and confidence. Where an employee is constantly monitored without legitimate reason and for longer than is necessary to achieve its objective, it may result in a breakdown in this implied duty of mutual trust and confidence, entitling the employee to resign and claim constructive dismissal.