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EAT rules on use of covert surveillance by employer

The issue of privacy has been much in the news following revelations that national intelligence agencies have been secretly operating mass surveillance programmes on citizens. On the smaller stage of employment relations, privacy is no less important. Employers need to show understanding of privacy laws, not least Article 8 of the European Convention on Human Rights, which enshrines 'the right to respect for private and family life'.

A recent Employment Appeal Tribunal (EAT) case tested the limits of employee privacy, and found that the law doesn't necessarily protect employees from surveillance if wrongdoing is suspected.

The case centred around an employee who regularly took time off to play squash during working hours and an employer who had put him under covert surveillance to confirm this. When it was found to be true, the employee was dismissed. To the employer's surprise, during a subsequent tribunal for unfair dismissal, the tribunal found that the covert surveillance had been a breach of Article 8, but awarded no compensation to the claimant.

The employer appealed and the EAT found that the surveillance was proportionate. It considered the employer was entitled to know where an employee was during paid time and an employee shouldn't expect such things to be private. Neither should someone who behaves fraudulently be entitled to privacy, it maintained. Article 8, should it have applied, also allows 'interference by a public authority' for the prevention of disorder or crime' or 'for the protection of the rights and freedoms of others'.

The fact that the case went to the EAT should be a reminder that privacy issues are rarely clear cut and should be treated with cautious sensitivity. For example, if an employer plans to monitor social media activity, it should be done in consultation with employee representatives and show that the business needs outweigh the adverse impacts.

Acas provides advice on Social media, defamation, data protection and privacy and provides practical training on Staff surveillance to ensure employers and managers comply with the requirements of the Data Protection Act and other privacy laws.

Visit the Acas Training and Business Solutions page for more information.

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