Employer monitoring and surveillance of employees is legal. In many cases there is a legal duty to monitor employees. However, there are boundaries employers should operate within.
We specialise in keeping employers within the legal framework of permitted employer monitoring and able to successfully defend themselves against claims.
Most employers do not want to invade the privacy of employees. But on the other hand employers do have legal responsibilities to monitor employers and prove they have taken monitoring seriously. We advise employers on the many grey areas that arise concerning legal monitoring of employees and guide on the judgement calls often needed.
Employers can be held legally responsible for their employees’ actions. This is termed vicarious liability. This means an employer could be liable for comments made about another employee or a competitor.
Defamation, discrimination and data protection laws all make employers responsible. Even if the employee was not at work the employer can still be liable.
Even if vicarious liability does not apply, employers often need to know what employees actually do. Firstly, employers require disciplinary and investigatory procedures which allow swift action.
Any authority expects employers to implement and police appropriate policies relating to surveillance and monitoring. We ensure our clients comply. Our clients thus mitigate some liability. Many offences carry criminal sanctions plus sizeable fines.
The directors can be held to account, if the company fails to monitor employees activities. Directors who fail to properly manage employees face regulatory authorities and shareholders.
The technology available to employers is rapidly developing. Unfortunately, the law has not kept up. The legal powers available to employees is in a state of development. However the employer may be on firm legal ground if it can rely on the employment contract. Modern employment contracts should include provisions detailing the monitoring that will take place.
Employers will be helped if their employment documentation permits monitoring on a general scale. A good surveillance policy will set boundaries, inform employees what they can and cannot do, and highlight activities detrimental to the business. Preservation of data is quicker and easier in dealing with ex-employees if the employer can rely on a policy.
As the scope of intellectual property rights develops, your employment contracts need to be updated and reviewed to reflect these developments, regardless of your business’s size or operations.
An employee who loads company information onto a personal account may find their conduct amounts to a misuse of the business’ confidential information. The employment contract should contain provisions requiring that confidential information is kept confidential. On a worst case scenario the court is more likely to grant an injunction.
Employees could object to employer monitoring under “human rights” legislation. Furthermore, an employer has a responsibility to store the information obtained via monitoring. The responsibility extends to:
The legal risks can be limited by including in the employment contract provisions such as:
In addition, employers should ensure they have the power to access:
There are numerous examples where the employer who does not monitor and reserve the power needed will be vulnerable. Two such examples relate to copyright breaches and taking bribes as we explain below.
The risk for employers if there is a breach of copyright by an employee is that the employer is accused of facilitating the breach. Employers can be liable for secondary infringement of intellectual property such as copyright. Thus employers do need to monitor this and act quickly if there is a suspected breach of copyright.
Copyright breaches could include employees whilst at work:
When monitoring employees, consider data protection laws. The laws are complex, and encompass EU regulations and regulatory bodies’ practice guides and procedures. Generally, there are two types of data:
The employer is responsible for:
Employers cannot ignore bribery. The Serious Fraud Office successfully prosecutes companies for failing to prevent bribery. Bribery is a criminal offence, unlike much of employment law.
It may be impossible to completely prevent an employee bribing someone. However, employers won’t have a defence unless they show adequate systems and controls are in place for employee monitoring and surveillance.
Importantly, your company must define a timeline for reporting suspected acts of bribery, and an investigation process. In practice employers undertake investigations into allegations internally. The investigation process is easier if employers have established contractual rights to monitor and seek co-operation in their employment documentation.