Can you spy on your employees?

Moira Grassick - Chief Operating Officer

June 21 2024

Workplace monitoring, while controversial for some, is a legitimate and legal method that you can implement to protect your staff and business.

Permitted methods of surveillance include maintaining CCTV systems, monitoring internet browsing history, inspecting email traffic, listening in on telephone calls, or conducting employee bag searches.

If implemented correctly, effective systems to monitor employee activity can help safeguard against harmful work practices and encourage higher levels of productivity within an organisation.

You should however be mindful that any such monitoring activity be proportional to the employment risks requiring surveillance. And it’s crucial to notify your employees of the surveillance and of its purpose.

Should you monitor your employee?

Employers who suspect their employees may need surveillance can choose to keep an eye on their behaviour through employee emails, internet browser history, and access locations. This way, employers are better positioned to evaluate if employees are acting inappropriately.

And clarity and communication are not just essential to help ensure compliance. Making sure your electronic monitoring is clearly defined with a well-explained purpose and is targeted as specific measures of performance has also been shown to be an effective strategy for increased levels of productivity.

The key? It’s crucial for employers to approach such initiatives in an open and fair manner and to not be overbearing. Studies have shown that the more employees feel their privacy is violated, the more dissatisfied they become with their role.

What can you do when monitoring employees?

You want to ensure that your employee isn’t violating their contract or engaging in illicit activity. So, how can you check while still respecting your employee’s privacy?

When engaging in employee surveillance, employers should focus on clarity and communication. Ultimately, your employees should be informed of any monitoring activity – and, what you plan to use it for.

Can you monitor employees by using CCTV?

Case law confirms that monitoring staff using CCTV systems will not breach an employee’s right to privacy or the rights of employees as data subjects under data protection legislation. This, provided that the CCTV policy is clearly communicated to employees and the data is processed in accordance with data protection legislation to include compliance with GDPR.

The Court of Appeal also confirmed that CCTV footage may only be reviewed in employee investigations and disciplinary proceedings. However, this is only if the employee has been notified that workplace CCTV footage may be used for this purpose.

Data processors must notify data subjects about the specified purpose for which the data will be collected. If not, the data is not considered as having been processed fairly, according to the Data Protection Act 1988.

Court of Appeals finds CCTV footage had been used unlawfully

In 2022, the Court ruled that CCTV security footage that had been used to investigate an employee discipline issue had been utilised unlawfully because an employer had communicated that the footage was being collected and processed for a different, specific purpose: security.

A CCTV system had been installed outside of a hospice and care centre. This, after new graffiti was discovered outside indicating a potential threat to security. Upon reviewing the footage over the period of a few days, an employee (who did not appear to have any hand in the graffiti) was however observed taking long, unauthorised breaks.

This led to a disciplinary process, sanctions, and a final report based on CCTV footage and fobs records accessed for the sole purpose of investigating the unauthorised breaks. The employee made a complaint to the Data Protection Commissioner (DPC), which was at first rejected, but after a series of appeals, was then upheld by the DP in a departure from their original ruling.

It was determined that the data had originally been collected lawfully for security purposes. However, it was decided that the data was then used impermissibly for the “distinct and separate purpose” of discipline.

Covert surveillance will be reviewed on a case-by-case basis

The Workplace Relations Commission (WRC) stated that there are certain instances, albeit narrow, when covert surveillance may be justified where the behaviour of the employee, if proven, may be an offence.

This is following a case where the WRC considered whether the use of data recorded on covert surveillance equipment can be relied on as evidence to dismiss an employee.

The case concerned an employee who was a driver for a waste collection company. The employer had concerns about the fuel usage of the employee and installed a camera on the truck which recorded use of the fuel tank only. The video evidence revealed that the employee had siphoned fuel from the truck at his home on several occasions.

The employer referred the matter to the Gardaí and carried out an extensive investigation and disciplinary procedure. The employee was then dismissed on the basis of the recorded misconduct.

The court relied on a precedent approved by the Data Protection Commissioner which stated that “the use of recording mechanisms to obtain data without an individual's knowledge is generally unlawful. Such covert surveillance is normally only permitted on a case-by-case basis where the data is gathered for the purposes of preventing, detecting or investigating offences, or apprehending or prosecuting offenders”.

As the video surveillance of the fuel tank was not general in nature and was not the sole basis upon which the employer made its decision to dismiss, the use of the video evidence did not render the dismissal unfair.

Engaging private investigators to monitor employees

The use of a private investigator by an employer has also been deemed to be lawful in circumstances where it's not central to the case against an employee.
Employers enjoy discretion to contract the services of a private investigator to monitor an employee who is suspected of fraud or workplace misconduct.

Each case will be reviewed on its own facts but it's clear that the discretional use of a private investigator will not invalidate a dismissal if the surveillance is required in the context of fraud or gross misconduct. And, it’s important that the evidence gathered by the private investigator is not the sole basis for the employer’s decision to dismiss.

Avoid overreliance on surveillance

Excessive reliance on surveillance data can result in the setting of unfair targets and take away autonomy, which will have additional negative implications on employee morale. Employees may even respond by trying to subvert surveillance systems, creating further employment issues rather than preventing them.

Be open on the need for surveillance

While employers are legally authorised to monitor employees through various methods, it's important to implement these systems in an open, fair and lawful manner. It's also recommended that employers consider if surveillance is in fact necessary, and that appropriate steps are taken to establish that any monitoring methods are proportionate to the risks involved.

Best practice employers discuss and agree workplace monitoring policies with their staff rather than unilaterally impose them.

Need our help?

Would you like further advice on CCTV in the workplace to help navigate this complex issue? Get complimentary advice from our advisors, who are ready to take your call any time day or night. Call us on 1800 719 216

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