Employee Spyware – A Trap for Unwary Employers

Employers who are fed up with the amount of time their employees spend on personal emails and websites may be tempted to monitor employees’ computer activities to collect evidence for disciplinary proceedings. Although technology can provide a useful tool for monitoring employees, when employers use it excessively, they risk a variety of claims. These include constructive unfair dismissal and, in some cases, breaching an employee’s Right to Respect for Privacy and Family Life (as discussed in our first article).

In recent years claims for the latter have resulted in employers paying thousands of pounds in damages to employees.

Nicholas Lakeland, Head of the Employment Unit at Silverman Sherliker LLP, advises that getting employee consent is the key. “The best time to deal with this issue is right at the beginning of the employment relationship,” says Nicholas.

Legislation concerning electronic monitoring looks at what reasonable efforts the employers have made to inform their employees that monitoring is occurring. It also looks at what is proportionate in terms of balancing the benefits to the business with the employee’s privacy and autonomy.

Employees can give their consent in the employment contract, and the message can also be drummed home by setting out the employer’s policy in employment handbooks.

However, to ensure that monitoring by employers is legal, explicit consent to specific acts is advisable.

Most employers are already updating their employment handbooks to take into consideration the new disciplinary and grievance procedures.

So now is a good time to review the procedures given to your employees on email monitoring to ensure they know what to expect when using work systems.

For advice on updating your employment handbooks, please contact our Employment Team: