Last reviewed 11 November 2015

Gudrun Limbrick looks at the extent to which the monitoring and surveillance of employees can be justified, and when it becomes an invasion of privacy.

It is said that the camera never lies, and we now rely on its truth-telling more and more. Cameras have been a significant part of our lives for a relatively short time, but we have accepted their presence readily. We hardly give a second glance to the many closed-circuit television (CCTV) cameras that capture us on our journeys and our daily movements around where we live and work, and most of us either have ready access to a camera or carry one with us at all times.

There are currently around 5.9 million CCTV cameras in the country, including 750,000 in sensitive locations, including schools, hospitals and care homes. That equates to 1 camera for every 11 to 14 people. And yet we barely give them a second thought. There are many uses for these cameras. For example, they are routinely used as a tool in looking for missing people. They are also used on a daily basis for rooting out traffic offenders. They are used both to protect people and to monitor people in institutions. They are used to keep a watch on property. Our awareness of, and feelings for, this form of surveillance tends to depend on our own personal experience of it.

In my first ever job, as a naïve 18-year-old, still at school, I was, along with all other members of staff, called into the manager’s office where a serious-looking police officer was standing next to a television screen. He told us how, for several months, there had been suspicions that money was going missing from the donations box, which used to sit on the counter. Now, after a surveillance operation, he had footage which had led to an arrest. We watch, in horror, as a murky video revealed the donations box there on the counter. In the background, a shadowy figure opened a drawer, took out a paperclip and bent it out of shape. As they then walked towards the donations box, they came into focus and, as she turned the donations box upside down and began hooking out the coins, we all recognised her familiar face. She was one of the people employed to clean the charity’s office each morning.

That shock of seeing someone I knew caught in the act of stealing is something that has stayed with me throughout the following decades. As has the dawning realisation that, throughout the course of the investigation, we had probably all been under suspicion, and that it was only this grainy video footage that had meant the right culprit had been caught. The technology was very new at the time, but I remain grateful that it was there to be used. This single incident has forever impacted my view of this type of technology.

Of course, filming is not the only type of surveillance now in common use. Homeworkers regularly have to log in to a central network, which lets people know that they are at their desk and even, in some systems, how they are spending their computer time. Emails, call logs and so on can be monitored for activity and content. Truck drivers can have journey times, stops, speed and other activities monitored. These forms of technology are generally designed to enable an employer to check that an employee is working and, to a lesser extent, monitor the quality of that work.

Like the CCTV monitoring our motorway journeys, we are already used to this form of monitoring and have begun to expect it. We are certainly not surprised when we learn that an employer wants the ability to check our movements. However, can an employer go too far and remove too much of our privacy?

A recent case in the USA has brought to popular attention quite how far an employer can go in monitoring employees. An employee took her employer to court saying that the company’s monitoring of her activities amounted to an invasion of her privacy. The monitoring in this case took the form a piece of software that all employees were asked to download onto their mobile phones. She claims that the software not only monitored her activities at her job, but also her activities in her private life and so she deleted the app. She alleges that once she had done so, she was fired.

While the case has yet to be heard, the basic arguments are clear. A company can argue that it has the right to monitor the activities of its employees as in this case, when the movements of travelling employees need to be kept track of, not simply to monitor their working behaviour, but also to manage the logistics of a team of travelling employees. However, the employee can argue that the employer loses this right outside of working hours.

In this country, the Information Commissioner’s Officer has been concerned to bring some clarity to the whole area, so that employers know how far they can go in monitoring their employees, and employees can know what their rights are in terms of protecting their own privacy.

It is this right to privacy that is central to the Commissioner’s guidelines. One of the core stated principles is: “Workers have legitimate expectations that they can keep their personal lives private and that they are also entitled to a degree of privacy in the work environment.” However, employers can monitor their employees where they are “clear about the purpose and satisfied that the particular monitoring arrangement is justified by real benefits that will be delivered”.

In an ideal world, an employer would always gain the consent of the employee before any monitoring took place. However, there is always a question about how freely consent can be given when an employer is insisting upon it and the alternative is to find another job. Also, employers will not always need consent if they are monitoring because they fear a crime, or a vulnerable person protection issue. Thus, it can be seen that employees have a right to privacy but there are instances in which this right is waived where the employer can justify this.

Being watched formally (through official CCTV, work log ins, etc) is now very much a part of life. For many of us, there was no monitoring when we started our careers, and yet all our activities are now monitored. Because of the speed of this development, many of us are guilty of letting it happen without giving it sufficient thought. An employer cannot simply monitor employees without considering what is being gained from doing so and explaining this to employees. An employee cannot simply accept monitoring that is in place without checking to make sure that it is not an invasion of our right to privacy both at work, and outside work. We are also now being watched informally in many cases — colleagues and friends can video our activity, albeit innocently, colleagues and friends can also monitor our activities, views and private life through our Facebook accounts and other social media. If this happens without us thinking, it can lead to us invading our own privacy and handing details to others that would actually be best kept private.