Workplace monitoring: should you spy on your employees?

While there is a balance between employee privacy and workplace safety, effective monitoring can boost productivity and protect against harmful work practices, says Moira Grassick

Workplace monitoring, while controversial, is a legitimate and legal method that you can implement to protect your staff and business.

Permitted methods of surveillance include maintaining CCTV systems, monitoring internet browsing history, inspecting email traffic, listening in on telephone calls, or conducting employee bag searches.

If implemented correctly, effective systems to monitor employee activity can help safeguard against harmful work practices and encourage higher levels of productivity within an organisation.

You should, however, be mindful that any such monitoring activity be proportional to the employment risks requiring surveillance, and it’s crucial to notify your employees of the surveillance and its purpose.

Should you monitor your employees?

Employers who suspect their employees may need surveillance can choose to keep an eye on their behaviour through employee emails, internet browser history, and access locations. This way, employers are better positioned to evaluate if employees are acting inappropriately.

Make sure your electronic monitoring is clearly defined and communicated with a well-explained purpose and is targeted. It’s crucial for employers to approach such initiatives openly and fairly and to not be overbearing. The more employees feel their privacy is violated, the more dissatisfied they become with their role.

What can you do when monitoring employees?

You want to ensure that your employee isn’t violating their contract or engaging in illicit activity. So, how can you check while still respecting your employee’s privacy?

When engaging in employee surveillance, organisations should focus on clarity and communication. Ultimately, employees should be informed of any monitoring activity and its planned use.

However, the Workplace Relations Commission (WRC) stated that there are certain instances, albeit narrow, when covert surveillance may be justified where the behaviour of the employee, if proven, may be an offence.

This is following a case where the WRC considered whether the use of data recorded on covert surveillance equipment can be relied on as evidence to dismiss an employee.

The court relied on a precedent approved by the Data Protection Commissioner which stated that “the use of recording mechanisms to obtain data without an individual’s knowledge is generally unlawful. Such covert surveillance is normally only permitted on a case-by-case basis where the data is gathered for the purposes of preventing, detecting or investigating offences, or apprehending or prosecuting offenders”.

The use of a private investigator by an employer has also been deemed to be lawful in circumstances where it’s not central to the case against an employee.

Employers enjoy discretion to contract the services of a private investigator to monitor an employee who is suspected of fraud or workplace misconduct.

Each case will be reviewed on its facts but the discretional use of a private investigator will not invalidate a dismissal if the surveillance is required in the context of fraud or gross misconduct. The evidence gathered by the private investigator cannot be the sole basis for the employer’s decision to dismiss.

Avoid overreliance on surveillance

Excessive reliance on surveillance data can result in the setting of unfair targets and take away autonomy, which will have additional negative implications on employee morale.

Employees may even respond by trying to subvert surveillance systems, creating further employment issues rather than preventing them.

While employers are legally authorised to monitor employees through various methods, it’s important to implement these systems in an open, fair and lawful manner.

It’s also recommended that organisations consider if surveillance is actually necessary, and take appropriate steps to establish that any monitoring methods are proportionate to the risks involved.