There are various reasons why an employer may wish to monitor its employees in the workplace. When there is a genuine reason for monitoring employees, such as security, training, legal obligations, etc the employer would normally be justified in monitoring, as long as it is conducted in an open and reasonable manner.
The actual use of monitoring equipment in the workplace will be covered by the Data Protection Act 1998 (“DPA”) as it would involve the processing of personal data. As such, the employer must adhere to a number of principles set out in the DPA, which include:
• obtaining the data fairly and lawfully;
• informing employees of the types of monitoring that are being used;
• using the data obtained from monitoring only for a specific purpose;
• limiting the data to adequate and relevant data; and
• not holding the data for longer than necessary.
An employee may only try and prevent the monitoring from taking place if it breaches any of the DPA principles or if it is carried out in a way that is causing or is likely to cause substantial damage and distress to them.
In addition to the above principles, the Information Commissioner's Office has published a Code on data protection in the workplace. The Code states that CCTV should not be used to monitor the employee's compliance with their employment contract. This means that if the cameras are there to deal with security issues, they should not be used to reprimand an employee over their poor performance.
The Code also recommends that routine CCTV monitoring of employees is only likely to be justified when there are particular safety or security risks that cannot be dealt with by less intrusive means. Covert monitoring by CCTV may only take place if the following exceptional circumstances apply:
• the monitoring relates to behaviour, not to contract performance;
• it is carried out to investigate a suspected criminal activity or malpractice; and
• informing staff is likely to prejudice the above purpose and certain standards for covert monitoring are complied with.
Finally, there is the issue of human rights. Under human rights legislation every person has the right to private life so if there is evidence that an employer has invaded that privacy the employee could take action against their employer. General monitoring that is justified and that meets the criteria set out above is unlikely to invade one’s privacy, but covert monitoring or monitoring in areas where some privacy could be expected (e.g. toilets, private rooms, vehicles, etc.) is likely to be unreasonable and possibly unlawful.
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