Rachel Ford-Evans of Darwin Gray explores legal issues around monitoring of employees from social media to CCTV cameras
With the recent buzz around some businesses in the US introducing microchips in their employees. here Rachel Ford-Evans, employment lawyer at Darwin Gray explores how employee monitoring in the UK may change.
The use of microchips on employees is not something which has made its way over to the UK yet, but there are various other ways in which UK employers monitor their employees inside and outside of the workplace.
"Employers need to be careful how they go about this monitoring in order to avoid falling foul of strict data protection and privacy laws.
Generally speaking, if an employer wants to monitor its employees inside or outside of the workplace, it needs to have written policies in place (usually found in its employee handbook) which make staff aware that it may do this.
"If they do not have any such written policies, employers are at risk of both being found in breach of data protection law and of facing Employment Tribunal claims by staff as a result of the breach of the employer’s duty of trust and confidence under the employment contract.”
From May 2018, employers will have even more obligations to protect their employees’ data, as the General Data Protection Regulation will come into force throughout the EU, including the UK.
Monitoring of social media
In July, EU data protection authorities said that it should not be general practice for employers to screen their employees’ social media profiles.
However, according to research published last year, 43% of recruiters check candidates’ Facebook pages when screening job applications, while 87% check LinkedIn profiles and 22% also check Twitter. Many workers are also friends with their bosses on Facebook or followed by them on Twitter, making it difficult to keep their private lives away from their employers – although bosses are not allowed to force their employees to accept friend requests.
In legal terms, it is not necessarily the case that employers are allowed to use information they find on their staff’s social media pages even if this information is counted as being in the public domain, but in practice, many employers do so.
Reading e-mails at work
Last year the European Court on Human Rights ruled that it was legal for employers to monitor staff’s work emails and other electronic messages.
The case was brought by an employee in Romania who was fired after his employer obtained transcripts of conversations he had been exchanging with his fiancée via a Yahoo instant messaging service during working hours.
The court said that monitoring these messages was permitted because the company had previously made it clear that using the service for private messages during working hours was banned.
In the UK, it is also legal for employers to monitor work emails provided that they have a written policy which states that they may do so, and makes it clear what the rules are on whether personal use of email systems is allowed. The same applies to checking employees’ internet history.
Screening
Many jobs require DBS checks (formerly known as CBS checks) to be made so that the employer can find out whether an employee has any relevant criminal convictions.
The employee’s consent is always required before this can be done, as this is counted as sensitive personal information for data protection purposes.
Once an offer of employment has been made, the employer can also request medical information, although they can’t generally use this information as a reason to withdraw a job offer as this could amount to discrimination.
CCTV
The use of CCTV cameras in the workplace is commonplace in some industries. In order for it to comply with data protection law, this should not be kept secret – signs should be displayed and the purpose of the CCTV cameras should be made clear.
Many employers might not realise that if they make workers aware that CCTV is used for a specific reason (e.g. to prevent thefts) then it will not be lawful for them to subsequently use CCTV footage against an employee for a different reason (e.g. to show that they regularly arrive late for work).
If they try to do so, any subsequent dismissal is likely to be found unfair by an Employment Tribunal, and it could also lead to a constructive unfair dismissal claim if the employee resigns as a result.
Original source: http://www.walesonline.co.uk/business/business-news/what-your-employer-can-cannot-13471162
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