Online monitoring in the workplace - is your business compliant?
Paul Hennity, solicitor at Percy Hughes & Roberts Solicitors
The widespread use of the internet, social networking and electronic devices in everyday life has meant that employers have had to quickly adjust security and working policies to ensure they can react accordingly when an outside threat poses a risk to the network. Unfortunately, in some cases, a select few employees take this constant access to the internet and personal social profiles as an excuse to distract them from their work.
However, there is a fine line for employers when it comes to monitoring internet use, and it is vital that management do not cross this in breach of privacy legislations. Here, we look closely at the notion of online monitoring in the workplace, advising businesses on existing privacy rules and how to ensure they are compliant.
A right to privacy
Article 8 of the European Convention on Human Rights gives us all a right to a private life. It recognises that, in many circumstances, there is crossover between our home and working lives, and therefore, our right to privacy extends into the workplace. In many ways, this is the starting point for an employee’s rights in terms of being monitored at work.
It is also important to remember that in all contracts of employment, there is an implied term of mutual trust between an employer and employee. This trust works both ways, and employees must be able to trust their employers as much as the employer trusts them. Nevertheless, the law also recognises that in certain circumstances, employers may be required to monitor their staff at work.
Due to increasing access to the internet and electronic devices in the workplace, many employers want to keep an eye on what their employees are doing online. While this is often acceptable, they do not have the right to pry wherever they wish. An employer must have good reason to justify an intrusion into an employee’s private life, and the means of monitoring must be proportionate to meet that need.
Social media monitoring
Employers are also permitted to monitor the social media accounts, emails and use of instant messenger apps of employees if they suspect something is wrong; however, the same rules apply and such action must be proportionate if it is to be justified. Employers must consider to what extent monitoring is required, and whether the same result can be achieved, without having to monitor staff.
They need to consider the impact this will have on employees, and whether there are any possible methods that are less intrusive, which would provide a viable alternative. It is generally difficult for employers to justify very wide forms of monitoring, for example, all social media accounts, emails and use of instant messenger apps, unless they can show there is a real risk of serious damage to the business.
The Data Protection Act 1998 requires employees to notify staff if they are intending to do so. However, some limited circumstances do have exceptions. Broadly speaking, employers must inform members of staff about what information is being monitored, why this is happening and who it will be made available to. One area where businesses repeatedly fall short is by believing that simply saying “your emails are being monitored” is enough, but doing so could put firms at risk of flouting the regulations.
If employers are occasionally monitoring employees, the staff should be made aware of when they are being watched and when they are not. Business owners must note that the law is not intended simply to catch out members of staff.
Ensure you are compliant
It is essential that employers are open about their specific monitoring rules, and should aim to have them set out in an electronic communications policy within their staff handbook. This should set out clear standards of conduct and performance, as well as giving an explanation as to why this approach is necessary. Employers should also communicate with members of staff about monitoring, and update them if any policy changes are being introduced.
Businesses should also look to communicate with employees who are concerned about the level of monitoring in the workplace. Having a clear, easy-to-understand policy that tells staff who they can turn to in such situations is vital for businesses, particularly those that plan to monitor staff on a regular basis. Individuals who feel they are being unfairly watched or that their privacy has been breached could file a grievance, which would put businesses under pressure to investigate.
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