It’s a common enough situation: you know or suspect that an employee is not performing properly, or worse is actively involved in some form of wrongdoing. But you want to make sure you have enough evidence before taking any action. What can you do? How can you make sure that your facts are correct – without falling foul of the law?

There are numerous pitfalls to be avoided: data protection, privacy and harassment, to name but a few. So what can an employer do? What right does an employer have to monitor staff?

Much depends upon the activities the employee is involved in. As a starting point, employee monitoring can take many forms and is widely used by many organisations. There can be routine monitoring, which is random and not restricted to a particular employee. Or spot checks, if there has been a complaint or allegation, or where wrongdoing is suspected.

A key method is routine checking or specific checks on emails. In sophisticated email systems, you can check for key ‘alarm’ words or monitor the addresses to which emails are being sent – both during employment and after an employee has left. This might be used, for example, where a former employee is breaching a restrictive covenant. If you suspect an exemployee of soliciting your clients, email activity before they left may provide the evidence you need to prove the breach. Latest technology can even allow deleted emails to be retrieved, if need be.

Other instances where email evidence is useful are cases of alleged harassment. Employees often circulate jokes using the company’s email system and these may sometimes contain offensive material. In a recent matter, an employee claimed harassment and sex discrimination, which involved circulation of potentially offensive emails.

Another popular form of monitoring is employees’ use of the company’s telephone systems. This can track time spent on calls or volume of spend. Also a useful facility if third parties regularly visit your premises.

A third form of monitoring is use of the internet. As with all forms of monitoring, this has particular implications, if staff are based at a third party’s premises. Take one instance where a client carried out such routine monitoring. As a result, it made an inadvertent and unexpected discovery. An employee, based on site but employed by an external company, was routinely accessing pornographic material via the client’s internet systems. This ultimately resulted in dismissal of the employee. Many forms of routine monitoring can be justified on a number of bases. It may be necessary, as in the recent matter, where an employee is claiming harassment through inappropriate emails. Or, in the case of someone accessing inappropriate material via company internet systems. Also, where evidence is needed such as in cases of alleged defamation, if statements were made in an email, this would justify monitoring of emails.

Appropriate and justifiable

Apart from routine monitoring and trying to collate evidence, what else can a company do? Surely a company can monitor any activity where an employee is behaving inappropriately?

In short, the answer is no. An employer’s actions may always be open to scrutiny. So, monitoring must be appropriate and justifiable in the circumstances. The employer must ensure there are specific policies and methods in place, in order to justify monitoring employees. And, even where there are policies in place, an employee is still entitled to a degree of privacy in the workplace and outside work. Plus the employer still needs to comply with the principles contained in the data protection legislation.

This was shown in a recent case heard by the employment appeal tribunal. In that case, an employer was told that, although an employee was signed in for work, the employee was going to the gym instead. In that situation, the employer wanted evidence of the wrong-doing before taking any action.

So what steps did the employer take to obtain that evidence? Well, the employer commissioned a private investigator to monitor the employee’s activities, which included the use of CCTV surveillance. The surveillance showed the employee outside a gym on a number of occasions when he should have been at work. In fact, the employee had even specifically told his manager on one occasion that he was at work.

The employment tribunal decided that the resultant dismissal was unfair. This was overturned on appeal, however, by the employment appeal tribunal. The employment appeal tribunal said that the dismissal was fair because the employer had used justifiable means to obtain evidence of misconduct. There were other issues raised, in connection with data protection and privacy rights. There was also the issue of whether surveillance inside the gym would have been appropriate. However, the case reiterates the fact that monitoring employees is permissible – in the right circumstances.

One final thought. The case has not clarified how far you can monitor third parties who are based on your premises. So, caution is needed when monitoring the activities of both employees and third parties. Ultimately, it will be a question of fact, in each case, as to whether the< monitoring is justifiable.

Employee monitoring: top ten tips

There are some key stages before any monitoring should be carried out:1. Carry out an internal assessment: this is needed to identify the purpose of the monitoring and look at the benefits and results the employer expects to achieve
2. Look at the adverse impacts: consider the disadvantages of carrying out the monitoring and how it could affect an employee’sright to privacy
3. Consider alternatives to monitoring: think about whether the same aim can be achieved using a different method. If so, monitoring isunlikely to be justifiable
4. Consider the obligations involved in monitoring: this covers matters such as the employee’s rights to privacyand data protection obligations
5. Determine if the monitoring can be justified: it is important to document the reasons why you think monitoring should be carried out. This could prove essential evidence if an employee challenges your decision
6. Notify employees that monitoring will be carried out: this includes details of what monitoring will becarried out and when
7. Notify employees why data is being obtained: explain why the monitoring will be carried out, being as specific as possible. Monitoring may act as a deterrent if employees know that the company is specifically looking at, for example, abuse of the company’semail and internet systems
8. Notify employees how information will be used: this is a general obligation linked to data protection. In particular, though, mention whether evidence obtained through monitoring may result in dismissal.
9. Notify employees of the people to whom the information will be disclosed: again as a general data protection obligation, limit access to the data to those employees who need to know and make sure that this is kept to a minimum.
10. Train staff who have access to such information: any staff who access the data must be made aware of the data protection and confidentiality implications of monitoring. Keeping records of training may also be useful evidence if the company’s actions are challenged.