Is it acceptable to covertly monitor staff?

Laura Anthony asks whether an employee’s right to privacy or an employer’s right to track the activities of their workers should take priority

Is it acceptable to covertly monitor staff?

When people are asked to consider human rights in the workplace, they understandably tend to think of discrimination issues. After all, protection against discrimination is one of the most high-profile areas of employment law. That said, as an inevitable consequence of today's digital world, we are seeing more and more human rights issues arising in the context of an employee's right to privacy.

Employee monitoring

Advances in technology have made monitoring employees easier. With the increased use of email, smartphones, laptops, trackers and SmartWare, almost every mode of communication has gone digital. It is now possible for employers to monitor their employees' every movement and communication to find out not just where they are, but also what they are doing. 

However, all employees have a right to respect for their private and family life, home and correspondence under Article 8 of the European Convention on Human Rights. Many employees argue monitoring by an employer is an intrusion on their right to a private life and is, therefore, unlawful.

On the other hand, employers will often argue employee monitoring is necessary as it helps easily identify performance issues; prevent liability and damage to the employer's reputation arising from employees' use of social media and internet; and safeguard employees in the workplace.

It is clear employee monitoring creates tension. At its most basic, this is in the form of an employee's right to privacy versus an employer's right to protect its business. The waters are muddied further when you consider that in the UK there is no express right to monitor employees and neither is there a blanket prohibition on doing so. This then leads to the question...

Is there a right to privacy at work?

In answering this question, case law suggests the ‘touchstone’ for the engagement of Article 8 is whether the employee had a reasonable expectation of privacy.

In López Ribalda and others v Spain the Grand Chamber of the European Court of Human Rights (ECtHR) considered whether the use of covert surveillance as a means of investigating suspected theft by several supermarket cashiers violated their right to privacy as protected under Article 8. 

As part of the investigation, the employer installed both visible and covert surveillance cameras in the supermarket. The visible cameras were aimed at customers and trained on the entrance and exit of the shop, and the covert cameras were aimed at employees and trained on checkouts. Employees were not notified of the covert cameras and the five applicants were dismissed for their involvement in theft or facilitating thefts shortly after the cameras were installed. The employees complained this was in breach of their right to privacy and the case went to the ECtHR.

The Grand Chamber held that, in this case, the use of covert CCTV footage did not violate the employees' right to privacy under Article 8. The use of covert surveillance was considered proportionate for the following reasons: 

  • the monitoring took place on the shop floor (a public area), so the employees only had a limited expectation of privacy;
  • the extent of the losses suffered by the business as a result of the thefts (up to €20,000 at a time);
  • the surveillance had only lasted for a relatively short duration (10 days);
  • only a limited number of people could view or access the footage; and 
  • telling the employees about the covert surveillance would have defeated the purpose of catching the thieves in the act.

The surveillance of the employees had not exceeded what was justifiable in the circumstances. The fact the employees had not been advised in advance of the existence of the hidden cameras did not, on its own, mean the intrusion on their privacy was disproportionate. 

It is clear from the López case that an employer can monitor its employees in certain circumstances. However, this does not mean employers have the explicit go-ahead to carry out monitoring as, when and how they like. The extent of the intrusion on the employee's privacy must be properly balanced against the legitimate aim the employer is seeking to protect. This exercise is clearly easier said than done and each case will be dependent on the particular circumstances. However, having strict policies in place dealing with employee monitoring will be helpful in most instances. 

Laura Anthony is an associate at Dentons