Employers have always been monitoring theirs employees in one way or another to assess the quantity and the quality of a worker's performance. Monitoring should be understood in a broad meaning: employers can decide to use hidden cameras, CCTV cameras, they can open e-mails or keep records of phone calls as well as check regularly the websites visited by employees. As they are responsible for theirs employees, they must be aware to a certain extent of what their employees are doing and how. This need to monitor theirs employees can be explained also by the fact that employees can breach the rules of confidentiality and thus jeopardize the firm, or for reasons of security.
The technological progress provides employers a wide range of tools to achieve theirs goals: CCTV cameras, monitoring software…Technically speaking the vision of a Big Brother watching all the time the employees is now possible. Thus this question of employees monitoring involves issues about data protection and human rights such as the respect of private life. The potential for abuse is huge: the information may be inaccurate, it can be collected for one purpose and used for another or they can be given to a third party without the consent of the employee…Thus a growing number of regulations have been enforced since 1998 in order to protect the employee and to delimit how far the employer can use monitoring practices without infringing on employee's privacy.
The aim of this report is to remind the employer the key legislations about employees monitoring and to advice him on how to deal lawfully with monitoring practices within his firm. Through the discussion of some relevant law cases related to the topic I will try to elaborate a practical guidance for employers about how to use surveillance practices without breaching the law and undermining the firm's performance.
[...] Concretely an assessment can be broken down into 5 parts: the identification of the purposes of monitoring and its potential benefits and the identification of any adverse effects, like for instance on customers. Maybe there exist other alternatives to monitoring that you have to take into account. Even if it looks obvious, you have to be aware of the legislative framework, of your rights as well as your duties; you would be better off knowing the basic law cases related to this topic too. [...]
[...] Through the discussion of some relevant law cases related to the topic I will try to elaborate a practical guidance for employers about how to use surveillance practices without breaching the law and undermining the firm's performance. I-The legislative framework concerning employees monitoring: your rights and your duties If you are thinking of introducing monitoring practices within your organisation, you have to be aware of the legislative framework. Regulations and codes of practices have been enforced since 1998, in order to control the use of monitoring, and to protect the employee's privacy as well. [...]
[...] However, he was refused access to all the manual files on the basis that the information sought was not “personal” and it did not form part of a “relevant filing system”. This case raises two main issues about data protection: What makes “personal” within the meaning of “personal What is meant by a “relevant filing system”? The Court of Appeal chose a narrow meaning of “personal if the name of the individual appears on the paper, it is not necessarily a “personal data”. [...]
[...] The key points are: you as an employer should not monitor your workers as a general rule, the use of monitoring practices should only occur for a specified and justified purpose; your employees should be aware of the existence and the purposes of monitoring except when covert monitoring is justified. Before monitoring you have to assess the impacts of such a measure. This overall review of the legislation shows us that the law tries to strictly shape the use of monitoring practices in order to protect employees' privacy. [...]
[...] It concluded that a relevant filing system was limited to a system in which the files forming part of it are structured or referenced in such a way as to indicate clearly at the outset of the search whether personal data is held on it, and which has a sufficiently sophisticated and detailed means of readily indicating where files can be found”. Neither the DPA not the European Directive are clear when it comes to manual files. But the later the Information Commissioner issued a statement in September 2004 which considerably narrows the concept of “relevant filings system”: only the personnel files organized in a chronological order would be covered by the legislation. We can argue that the Court's decision about the Durant case restrict the scope of the DPA in a significant way. [...]
Online readingwith our online reader
Content validatedby our reading committee