Is the covert surveillance of employees ever lawful?

Emilie Bennetts and Rachel Walsh explain what the law says a business may and may not do in monitoring the activity of staff

The problem
With one CCTV camera for every 11 people in Britain, 21st-century Britons are very used to being watched. However, the recent phone-hacking and National Security Agency scandals have ratcheted up the debate on personal privacy and when its invasion may be justified.

Employers have long monitored the activities of their employees and there are many legitimate reasons to do so. Now, with software that automatically checks the content of emails, and social media sites giving employers another forum in which to monitor their workforce, it is easier than ever to watch your workforce in secret.

But how do employers know what type of surveillance is necessary, appropriate and legal?

The law
The law relating to the monitoring of employees applies to the monitoring of electronic communications (such as email and phone) as well as video and audio surveillance. Employers who employ any sort of monitoring or surveillance are subject to the Data Protection Act 1988, with its strict obligations regarding the management and storage of data, and how long it can be kept for.

Data obtained through monitoring must be "adequate, relevant and not excessive". Failure to comply with these conditions can lead to criminal liability and a hefty fine.

An employee with a legitimate expectation of privacy who discovers they are the subject of covert monitoring by their employer may consider the implied relationship of mutual trust and confidence between employer and employee has been breached. However, in the recent case of City and County of Swansea v Gayle, the Employment Appeal Tribunal held that however morally or socially "reprehensible" an employer's behaviour might be in employing a private investigator to film a employee it suspected of malingering, these methods did not make an otherwise fair dismissal unfair. The tribunal ruling was that an employee attempting to defraud their employer did not have
a reasonable expectation of privacy in a public place.

Expert advice
While covert monitoring can be lawful, it is subject to rigorous control. As well as potential liability for unfair or wrongful dismissal or breach of contract, employers risk serious - and in some cases, criminal - sanctions if they get
it wrong. The Information Commissioner's Office has published The Employment Practices Code to offer additional guidance in this area. The code is very clear that covert monitoring should not normally be considered and will rarely be justified. Employers should assess whether covert surveillance is necessary and proportionate.

It is also advisable to have a clear policy on monitoring and surveillance.

Checklist

- Have a clear policy which sets out any monitoring taking place and the reasons for it.

• Whether you are monitoring openly or covertly, make sure you comply with the Data Protection Act.
• Use covert monitoring only where it can be justified and after weighing the business's needs against employees' right to privacy and protection.
• If you are undertaking covert monitoring, ensure you don't monitor areas that a worker would genuinely and reasonably expect to be private. CCTV in work toilets, for example, should not usually be considered.

Beware!
While covert monitoring can be lawful, government guidance and tribunals have indicated it is only appropriate in very limited circumstances, such as where serious misconduct or criminal activity are suspected. Employers should think very carefully before deploying this nuclear option and consider other methods first.

Contact
Emilie Bennetts is an associate and Rachel Walsh is a trainee solicitor at law firm Charles Russell
emilie.bennetts@charlesrussell.co.uk