This is because monitoring is seen to be intrusive and employees have a right to expect certain levels of privacy, even at work.
The usual method adopted by employers to overcome this is simply to inform staff that monitoring of this kind will take place so that an expectation is placed with them that this will happen. This is best done in a formal manner and in writing to avoid any confusion or claims by the employees that they had not been made aware of your intention.
The formal method can be done in a couple of ways. One is by including a clause in employees’ contracts of employment which states that certain communications undertaken by the employee during the course of their work will be monitored.
Another method is to implement a broad communications policy, for example, that sets out the company’s general intentions and expectations around all methods of communication. This could then include your expected standards of behaviour in relation to the use of telephones, internet etc and inform the employee that, should their behaviour breach your rules, there will be consequences. You would then bring to their attention that, in order to ascertain whether staff are keeping to the rules, you will monitor their usage. The breadth of the monitoring should be made clear in the policy but it is within reasonableness that you say all calls will be recorded and all inboxes will be continually monitored. In rare circumstances when staff need to make a private call and cannot use their mobile phone, you could include provision that you will find them an unrecorded line to use.
This usually is accompanied by a set of disciplinary rules stipulating that unauthorised use of email, internet and/or telephone will be treated as a disciplinary matter. This then sets expectations in the employee’s mind that, should they then behave in this way, that they have done something wrong.
Without these clauses/policies, and therefore without the employee’s prior consent, you will need to be more careful with your approach, particularly if you have not informed employees of what constitutes a breach in this regard. It is difficult to convince a tribunal that you acted reasonably in disciplining/dismissing an employee for certain behaviour when they had no reasonable chance of knowing what they were doing was wrong. You could consider issuing a statement to all staff that certain behaviours are not permitted and any instances where this occurs will be handled under the disciplinary procedure.
Covert monitoring is not likely to be considered an action of a reasonable employer in normal circumstances.
For any further clarification, please call our 24 Hour Advice Service on 0844 892 2772.
By Nicola Mullineux