Employers may need to monitor employees for performance or trust issues, conduct and often to limit their own liability for their employee's actions. This has to be considered carefully, if necessary with guidance from employment solicitors, as it can result in an employment law claim and there is a wide range of statute that governs monitoring employees at work including
- European and UK based Human Rights legislation;
- Data Protection Act;
- Regulation of Investigatory Powers Act;
- Telecommunications (Lawful Business Practice) Interception of Communications regulations 2000.
The employer has to be careful that any action does not breach the implied term of mutual trust and confidence between the employee and employer, as this would potentially result in constructive dismissal and a claim for unfair dismissal.
There is no general right to privacy, however legislation has been introduced to give employees some protection against unwarranted infringements and the law of privacy is continually developing.
The European Convention of Human Rights is not directly enforceable against the private sector, but the Employment Tribunal does have to take the provisions of the ECHR into account to interpret legislation, so as to be compatible. The Convention provides the right to respect private and family life, home and correspondence. The right could be infringed if an employee is dismissed due to covert monitoring. The employee may be successful for a claim of unfair dismissal as the evidence used should be inadmissible under the Convention.
The Regulation of Investigatory Powers Act 2000 introduced criminal and civil liability for unlawful interception of communications. Employers are allowed by the Act to intercept communications if there are reasonable grounds to believe that the sender and the intended recipient consent to it or is authorised by the Telecommunication Regulations 2000. The Regulations allow an employer to intercept, monitor and, in limited situations, record for certain specified purposes, such as detecting unauthorised use by employees. To take advantage of this exemption the employer must make all reasonable efforts to inform potential users of the system that interceptions may be made and should warn employees (usually in the employment handbook).