Monitoring within the workplace can take different forms, from CCTV monitoring to substance testing to scanning emails and telephone calls. Data protection laws will cover any workplace monitoring which involves taking data, pictures or samples and employers need to ensure that the system they put in place does not breach these laws. Generally, in order to monitor within the workplace the consent of the employees is required because employees will still be entitled to receive a certain level of privacy, even whilst they are at work.

Employers who wish to carry out workplace monitoring must inform and explain to employees that monitoring is taking place, how much is being carried out and what exactly is being monitored. This is best done in a formal manner, and in writing, to ensure that all employees are aware of this taking place.

Formal notice can be done by including a clause in the employees’ contracts of employment which state that certain methods of communication they will use during their course of work will be monitored, i.e. works email accounts. This is enough notice and receiving a signed contract which contains this clause will constitute agreement to the monitoring.

Alternatively, another method is to introduce a business-wide communications policy which sets out the company’s intentions and expectations surrounding all methods of communication, such as telephone and internet. This policy would then go on to inform the employees that, in order to ensure the policy is adhered to, monitoring will be carried out. Again, this should detail the breadth of monitoring that will take place and which methods will be used, such as recording calls, email searches or word flagging. Such a policy will usually contain a set of disciplinary rules that stipulates what action will be carried out if there is an unauthorised use of company communication and expressly states that this will be classed as a disciplinary matter.

Without any one of these clauses or communications policy, therefore without the employee’s consent, any action carried out due to monitoring is likely to be regarded as unfair because the employee was not warned in advance what was expected of them and the consequences of breaching this unknown expectation. Covert or intrusive monitoring is not often considered a reasonable act by a reasonable employer.

For further clarification on the issue please contact the Peninsula Advice Service on 0844 892 2772.