201509 CM September

HR MATTERS
EMPLOYEE
MONITORING
WHAT ARE THE LEGAL ISSUES?
Gareth Edwards looks at the rise of Big Brother in the workplace.
QUITE reasonably, employers want
to know what their employees are
doing while they are at work. From
a purely practical point of view,
employers want to be sure that employees
are spending their working hours
performing the tasks assigned to them. But
how far can a firm go in checking on staff or
determining what they consume?
Smoking in enclosed or substantially
enclosed public places and workplaces
in England has been banned since 1 July
2007. This means that premises used as
a place of work by more than one person,
or where the public may enter, must be
kept smoke free. The smoking ban covers
manufactured and hand-rolled cigarettes,
pipes, cigars and herbal cigarettes.
However, in a recent case, Insley v
Accent Catering, a school caterer was
asked to attend a disciplinary hearing
having been seen using an e-cigarette in
front of pupils. The caterer resigned before
the disciplinary hearing took place so the
tribunal was not required to decide if the
dismissal was fair. Electronic cigarettes
are unlikely to fall under the statutory
smoking ban as they involve the inhalation
of vaporised mist, rather than smoke. To
prohibit the use of electronic cigarettes
at work, an employer must make it clear
its non-smoking policy that use of thesecigarettes
is expressly prohibited.
Under the Health and Safety at Work etc.
Act 1974, employers have a duty to ensure
a safe place and safe systems of work for
staff. Protecting employees from alcohol
and drugs misuse can be a part of this,
and it is sensible to ensure that employers
have clear rules about coming to work while
under the influence of alcohol or drugs, or
drinking alcohol or taking drugs whilst at
work.
Employers should give some thought
about how to deal with employees who
suffer from alcohol or drug dependency.
While alcohol and or drug addiction are
specifically excluded from amounting to
a ‘disability’ under the Equality Act 2010,
conditions arising from substance misuse
may well meet the definition of disability.
Particular care is required in relation to
employees who are required to drive as
part of their duties – new changes in the
law mean that greater scrutiny is being
placed on ‘drug driving’. It is now illegal for
a person to drive with legal drugs in their
body if those drugs impair their driving. As
always, employers should consider the risk
of being found to be vicariously liable for
their employee's actions and make sure
that their rules and procedures make clear
what conduct would not be acceptable.
Employers may also consider whether
it is necessary to draft a policy to state
that employees must submit to drug
screening. This is only likely to be relevant
where staff drive or operate machinery or
where working under the influence of drugs
could cause injury or could damage the
employer's business.
Even where a drug screening policy is in
place, employers will not be able to require
staff to submit to drug testing without their
specific consent to do so. A monitoring
policy may, however, be drafted to say that
withholding consent will be treated as a
misconduct offence of itself.
Allied to monitoring substance use at
work, an employer may wish to conduct
searches of its employees or property
at work. An employer should exercise
care before searching. If an employer
unreasonably seeks to impose searches,
this could irretrievably damage trust
between employer and employee, risking
an employee resigning and bringing a
constructive dismissal claim.
As ever, the best advice would be to
develop a clear policy setting out when and
in what circumstances an employer can
undertake searches. It is important that an
employer applies any policy consistently to
avoid discrimination claims.
In addition to questions of privacy,
monitoring employee’s use of email and
the internet involves the processing of
personal data and so the impact of the Data
Protection Act 1998 should be considered.
The Information Commissioner,
who oversees compliance with data
protection issues in the UK, has issued
guidance in the form of The Employment
Practices Code, with which employers
should familiarise themselves with before
considering monitoring of employee’s
email and internet usage. Central to the
guidance is that employers undertake a risk
assessment before engaging in monitoring
to confirm, among things, the justification
for monitoring.
Employers must ensure that their
employees understand when and in what
circumstances the content of their email
or internet information will be monitored
or reviewed. At the very least, employers
should ensure that it has an effective
employee monitoring policy in place and
that staff are aware of it.
Gareth Edwards is a partner in the
employment team at Veale Wasbrough
Vizards.gedwards@vwv.co.uk.
The recognised standard in credit management
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