Employee monitoring: the legal issues

observing-your-employeesEmployers want to know what their employees are doing whilst they are at work. From a purely practical point of view, employers want to be sure that their employees are spending their working hours performing the tasks assigned to them, and not doing something else.
Employers should exercise care when checking up on employees at work. If an employer fails to comply with its obligations it may damage working relations that in some cases may lead to the resignation of employees and constructive dismissal claims.

E-Cigarettes

Smoking in enclosed or substantially enclosed public places and workplaces in England has been banned since July 1, 2007. This means that employers must ensure that premises used as a place of work by more than one person, or where the public may enter, are kept smoke-free. The smoking ban covers manufactured and hand-rolled cigarettes, pipes, cigars and herbal cigarettes.
In the recent case of Insley v Accent Catering a caterer at a school was asked to attend a disciplinary hearing having been seen using an e-cigarette in front of pupils. The caterer resigned before the disciplinary hearing took place so the tribunal was not required to decide if the dismissal was fair. Electronic cigarettes are unlikely to fall under the statutory smoking ban as they involve the inhalation of vaporised mist, rather than smoke.
This means that in order to prohibit the use of electronic cigarettes at work, an employer must make it clear in its non-smoking policy that use of these cigarettes is expressly prohibited.

Alcohol and drugs

Under the Health and Safety at Work. Act 1974, employers have a duty to ensure a safe place and safe systems of work for their staff. Protecting employees from alcohol and drugs misuse can be a part of this, and it is sensible to ensure that employers have clear rules about coming to work whilst under the influence of alcohol or drugs, or drinking alcohol or taking drugs whilst at work.
While alcohol and or drug addiction are specifically excluded from amounting to a “disability” under the Equality Act 2010, conditions arising from substance misuse may well meet the definition of disability.
Particular care is required in relation to employees who are required to drive as part of their duties – new changes in the law mean that greater scrutiny is being placed on “drug driving”. It is now illegal for a person to drive with legal drugs in their body if those drugs impair the person’s driving. As always, employers should consider the risk of being found to be vicariously liable for their employee’s actions and make sure that their rules and procedures make clear what conduct would not be acceptable.
Employers may also consider whether it is necessary to draft a policy to state that employees should submit to drug screening. Even where a drug screening policy is in place, employers will not be able to require staff to submit to drug testing without their specific consent to do so. A monitoring policy may, however, be drafted to say that withholding consent will be treated as a misconduct offence of itself.

Searches

Allied to monitoring alcohol and drug use at work, an employer may wish to conduct searches of its employees or property at work. An employer should exercise care before searching property – theirs or an employees. If an employer unreasonably seeks to impose searches, this could irretrievably damage trust between employer and employee, risking an employee resigning and bringing a constructive dismissal claim.
As ever, the best advice would be to develop a clear policy setting out when and in what circumstances an employer can undertake searches. It is important that an employer applies any policy consistently; failure to do so may give rise to an employee arguing that they are suffering discrimination.

Email and internet use

In addition to questions of privacy, monitoring employee use of email and the internet involves the processing of personal data and so the impact of the Data Protection Act 1998 should be considered.
The Information Commissioner, who oversees compliance with data protection issues in the UK, has issued guidance in the form of The Employment Practices Code, which employers should familiarise themselves with before considering monitoring of employees’ email and internet usage. Central to the guidance is that employers undertake a risk assessment before engaging in monitoring to confirm the justification for monitoring.
At the very least, employers should ensure that it has an effective employee monitoring policy in place and that staff are aware of it.

Summary

Clearly, well drafted policies and procedures are key, but is it important, that any policies and procedures are applied consistently. Where the employment tribunal is required to hear cases involving employee monitoring, it is invariably because the employee alleges that a policy has been inconsistently treated, or that they have been singled out in some way.

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