21 Nov 2017
A decision by the Grand Chamber of the European Court of Human Rights has brought the question of employee monitoring to the forefront of employers’ minds once again. Mark Stevens examines the implications for UK businesses and their staff.
Mark Stevens
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The Grand Chamber in Barbulescu versus Romania examined the ability of employers to monitor employees’ work email accounts and, in particular, the extent to which employers can check whether employees are using email accounts for solely work-related purposes.
The case highlighted the fine balance between an employee’s reasonable expectation of privacy and an employer’s right to check the activities of those working for them. It was not sufficient for the employer to simply inform the employee an internet usage policy was in place, but instead the Grand Chamber found the employee should also have been made aware of the extent and nature of the monitoring activities the employer was putting in place.
In the UK, the monitoring of employees is heavily regulated by existing legislation, which places limitations on the powers of employers to monitor their employees’ private communications, including the Data Protection Act 1998. The decision tells employers they must provide a legitimate reason to justify the monitoring of an employee’s communications. This requires some form of assessment to be in place, to decide whether legitimate reasons exist.
The importance of an assessment can also be found in the Information Commissioner’s “Employment Practices Code”, which recommends employers carry out an impact assessment.
Carrying out an impact assessment in relation to communications monitoring is one way employers can demonstrate they have achieved this. Employers should also ensure they have a communications monitoring policy in place.
The extent to which employers need to monitor their employees’ use of alcohol – or indeed, drugs – will depend on the particular business environment and the event in question. Those whose staff use vehicles as part of their jobs, for instance, will need to maintain a higher level of vigilance in this respect.
Even with a drug screening or alcohol testing policy in place, employers will not be able to require staff to submit to testing without their specific consent. One option is to draft the monitoring policy to say withholding consent is a misconduct offence in itself.
Employers whose staff work “off-site” – say when driving – may find it particularly difficult to know the exact movements of their employees during their working hours. Improvements in technology, such as GPS, have, however, made employee accountability in the workplace much easier in recent years.
If employers do intend to monitor vehicles, they should ensure they provide a policy that sets out the nature and extent of the monitoring.
Employers should satisfy themselves that their employees are aware of the policy in place, what information is recorded and the purpose for that recording. Where the vehicle is used for both private and business use, employers should be particularly wary, as monitoring movements when the vehicle is being used privately will rarely (if ever) be justified.
Employers should carefully consider which, if any, form of monitoring is necessary for their business, without being unnecessarily intrusive to the privacy of staff. Carrying out impact assessments is often a useful way of determining whether the monitoring is truly justifiable.
Case law such as Barbulescu versus Romania clearly demonstrates the courts take the privacy of staff in the workplace very seriously. To reduce the risk of employee complaints, employers should try to be transparent and honest with employees.
