Is the covert surveillance of employees a big deal? Is the covert surveillance of employees a big deal?

Is the covert surveillance of employees a big deal?
16 Nov 2017

The issue of under what circumstances the covert surveillance of UK employees is permissible at work has been the subject of much discussion lately. The topic came to the fore following a ruling by the European Court of Human Rights in September 2017 that an individual’s right to privacy had been breached when his employer investigated his private messages.

The long-running case of Barbulescu v Romania raises the question of whether evidence obtained by covert surveillance can be used by an employer as part of their internal disciplinary or dismissal procedures. But what becomes clear is that similar principles to those applied in the case of normal workplace monitoring are also involved in that employers must balance the need to understand any alleged abuse of their business resources - including time - with an employee’s right to a private life.

What does ‘covert surveillance’ mean?

The right to respect for private and family life is a key right (Article 8, European Convention of Human Rights) and the UK courts are required, as far as is possible, to interpret all legislation in a way that is compatible with this right. There is an exception in Article 8, however, which allows public bodies to interfere with this right in cases of:

- National security;
- Public safety;
- The economic well-being of the country;
- Prevention of crime;
- Protection of health, morals or the rights and freedom of others.

Article 8 is incorporated into UK domestic legislation under the Human Rights Act 1998. Another important piece of legislation here, the Data Protection Act (DPA) 1998, provides for the lawful processing of personal data.

The UK’s Information Commissioner’s Office (ICO) has also published a Code of Practice to guide employers on their obligations under the DPA.

Part 3 of the ICO’s Employment Practices Code deals with employee monitoring, which includes covert surveillance. It is the first place that employers should go for reference purposes when considering workplace monitoring issues, including covert surveillance.

Covert monitoring under the Code means “monitoring carried out in a manner calculated to ensure those subject to it are unaware that it is taking place”. Examples of covert video or audio monitoring are provided.

Is covert monitoring a big deal?

Yes, it is, not just because of the Convention rights mentioned above, but because employers also need to navigate the DPA, the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practices) (Interception of Communications) Regulations 2000.

Another consideration for employers is how to avoid breaching the implied term of trust and confidence in an employee’s contract, which could inadvertently give rise to a constructive unfair dismissal claim. Employees who believe they are being unfairly monitored could also contemplate claims of unlawful discrimination.

Is the reason for covert surveillance fair and balanced?

Evidence obtained through covert surveillance can be used in internal employment investigations, and has been deemed admissible in several employment cases, although employers must follow a fair procedure. The ICO’s Employment Practices Code suggests they undertake ‘impact assessments’ to demonstrate that covert monitoring achieves the desired balance between allowing workers to enjoy their privacy, while ensuring the interests of the business are protected.

Case law also indicates that the balance between privacy and business interests comes down to proportionality and the means used to achieve a given end.

Covert surveillance normally needs to be authorised by senior management and should be the exception rather than the rule when investigating allegations against employees.

Managers should be satisfied that there are grounds for suspecting criminal activity or equivalent malpractice such as a staff member working for another employer during time paid for by you. Such a situation would mean that it was not possible to notify the employee concerned that monitoring was taking place because to do so would prejudice the detection or prevention activities.

When undertaking impact assessments, it is vital for employers to understand why covert surveillance might be necessary and to establish whether there is a less invasive way of achieving the same goal.

The impact of monitoring can be limited by ensuring that strict parameters in terms of time and location are placed around it. Surveillance should not be undertaken in private places where employees would have a genuine expectation of privacy. For example, a private investigator should not monitor staff members other than in public areas.

Information obtained as part of covert surveillance activity must be retained only for that investigation and for no longer than is necessary. If using third parties to undertake the surveillance, employers should check that any information obtained by that third party will not be used for any purpose other than the investigation.

In-vehicle monitoring

Some employees may already be used to the concept of in-vehicle monitoring in their private cars as some insurers ask people to consider using gadgets that monitor both their driving and that of other road users in order to reduce insurance premiums and assist with the resolution of claims. In-vehicle monitoring can likewise assist employers in keeping insurance premiums and the risk of accidents low.

But there are certain steps that employers must take to ensure that the use of invehicle monitoring in company vehicles is reasonable. These steps include using a “privacy button” or similar arrangement that disables monitoring activity when the vehicle is being used for private rather than business use (generally outside of normal working hours).

The company vehicle policy can also be amended to provide for in-vehicle monitoring being a safe and reasonable condition of use. If it is a new concept for the employee and the organisation though, it is recommended that employers consult with their staff first and give them notice that they intend to introduce the devices. They should also amend their company vehicle policy to fit.

 

Emma Bartlett advises on all aspects of employment law including unlawful discrimination, whistleblowing, equal pay, unfair dismissal, breach of contract, restrictive covenants, protecting confidential information, boardroom disputes, holiday pay and TUPE. She has experience in obtaining and executing interim injunctions against former employees who have breached confidentiality and/or restrictive covenant provisions. With a strong record in negotiating and resolving complex employment disputes, Emma is considered a skilled deal broker. She is a specialist in contentious discrimination matters and has significant experience in handling high value contentious claims for employers and senior individuals.

The issue of under what circumstances the covert surveillance of UK employees is permissible at work has been the subject of much discussion lately. The topic came to the fore following a ruling by the European Court of Human Rights in September 2017 that an individual’s right to privacy had been breached when his employer investigated his private messages.

The long-running case of Barbulescu v Romania raises the question of whether evidence obtained by covert surveillance can be used by an employer as part of their internal disciplinary or dismissal procedures. But what becomes clear is that similar principles to those applied in the case of normal workplace monitoring are also involved in that employers must balance the need to understand any alleged abuse of their business resources - including time - with an employee’s right to a private life.

What does ‘covert surveillance’ mean?

The right to respect for private and family life is a key right (Article 8, European Convention of Human Rights) and the UK courts are required, as far as is possible, to interpret all legislation in a way that is compatible with this right. There is an exception in Article 8, however, which allows public bodies to interfere with this right in cases of:

- National security;
- Public safety;
- The economic well-being of the country;
- Prevention of crime;
- Protection of health, morals or the rights and freedom of others.

Article 8 is incorporated into UK domestic legislation under the Human Rights Act 1998. Another important piece of legislation here, the Data Protection Act (DPA) 1998, provides for the lawful processing of personal data.

The UK’s Information Commissioner’s Office (ICO) has also published a Code of Practice to guide employers on their obligations under the DPA.

Part 3 of the ICO’s Employment Practices Code deals with employee monitoring, which includes covert surveillance. It is the first place that employers should go for reference purposes when considering workplace monitoring issues, including covert surveillance.

Covert monitoring under the Code means “monitoring carried out in a manner calculated to ensure those subject to it are unaware that it is taking place”. Examples of covert video or audio monitoring are provided.

Is covert monitoring a big deal?

Yes, it is, not just because of the Convention rights mentioned above, but because employers also need to navigate the DPA, the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practices) (Interception of Communications) Regulations 2000.

Another consideration for employers is how to avoid breaching the implied term of trust and confidence in an employee’s contract, which could inadvertently give rise to a constructive unfair dismissal claim. Employees who believe they are being unfairly monitored could also contemplate claims of unlawful discrimination.

Is the reason for covert surveillance fair and balanced?

Evidence obtained through covert surveillance can be used in internal employment investigations, and has been deemed admissible in several employment cases, although employers must follow a fair procedure. The ICO’s Employment Practices Code suggests they undertake ‘impact assessments’ to demonstrate that covert monitoring achieves the desired balance between allowing workers to enjoy their privacy, while ensuring the interests of the business are protected.

Case law also indicates that the balance between privacy and business interests comes down to proportionality and the means used to achieve a given end.

Covert surveillance normally needs to be authorised by senior management and should be the exception rather than the rule when investigating allegations against employees.

Managers should be satisfied that there are grounds for suspecting criminal activity or equivalent malpractice such as a staff member working for another employer during time paid for by you. Such a situation would mean that it was not possible to notify the employee concerned that monitoring was taking place because to do so would prejudice the detection or prevention activities.

When undertaking impact assessments, it is vital for employers to understand why covert surveillance might be necessary and to establish whether there is a less invasive way of achieving the same goal.

The impact of monitoring can be limited by ensuring that strict parameters in terms of time and location are placed around it. Surveillance should not be undertaken in private places where employees would have a genuine expectation of privacy. For example, a private investigator should not monitor staff members other than in public areas.

Information obtained as part of covert surveillance activity must be retained only for that investigation and for no longer than is necessary. If using third parties to undertake the surveillance, employers should check that any information obtained by that third party will not be used for any purpose other than the investigation.

In-vehicle monitoring

Some employees may already be used to the concept of in-vehicle monitoring in their private cars as some insurers ask people to consider using gadgets that monitor both their driving and that of other road users in order to reduce insurance premiums and assist with the resolution of claims. In-vehicle monitoring can likewise assist employers in keeping insurance premiums and the risk of accidents low.

But there are certain steps that employers must take to ensure that the use of invehicle monitoring in company vehicles is reasonable. These steps include using a “privacy button” or similar arrangement that disables monitoring activity when the vehicle is being used for private rather than business use (generally outside of normal working hours).

The company vehicle policy can also be amended to provide for in-vehicle monitoring being a safe and reasonable condition of use. If it is a new concept for the employee and the organisation though, it is recommended that employers consult with their staff first and give them notice that they intend to introduce the devices. They should also amend their company vehicle policy to fit.

 

Emma Bartlett advises on all aspects of employment law including unlawful discrimination, whistleblowing, equal pay, unfair dismissal, breach of contract, restrictive covenants, protecting confidential information, boardroom disputes, holiday pay and TUPE. She has experience in obtaining and executing interim injunctions against former employees who have breached confidentiality and/or restrictive covenant provisions. With a strong record in negotiating and resolving complex employment disputes, Emma is considered a skilled deal broker. She is a specialist in contentious discrimination matters and has significant experience in handling high value contentious claims for employers and senior individuals.