A recent case has highlighted the need for employers to carefully consider their justification for monitoring employees and how they go about it. Michael McDonnell, Commercial Litigation Solicitor at Coles Miller Solicitors LLP, offers his advice and guidelines to help employers on this issue.

“There are many practical reasons for monitoring employees,” begins Mr McDonnell. “It is important for companies to ensure quality control and crime prevention. Today most employees have access to the internet, emails, mobile phones and PDA’s to help them with their work. Employers not only have to ensure employees are not using these facilities excessively for personal use, but also that they are not using them for unlawful reasons, as the employers themselves may find themselves liable for any employee action.”

The European Court of Human Rights introduced the Regulation of Investigatory Powers Act in October 2000, which gives employers more justification for monitoring employee’s emails, phone calls and internet use at work. “Even though employers do have more scope when it comes to monitoring employees now following on from the legislation, it does also bring tighter restrictions on what they can monitor and how so they must still exercise caution in the area,” continues Mr McDonnell.

“For example, companies must exercise caution to avoid a potential breach of Article 8 of the European Convention of Human Rights. The Article states that “everyone has the right to respect for his or her private life, his home and his correspondence”. It is therefore important that companies have a clear and formal email, internet and telephone policy regarding staff monitoring. Not only must these policies be clear but they must also be agreed by those who have to enforce it as to avoid any miscommunication when or if they have to discipline an employee based on the grounds of misuse of the companies facilities. Staff should also be told that they will be monitored, the types of monitoring taking place, the reasons for it, what information will be obtained, how the information will be used and to whom it will be disclosed.”


Not only is it important to follow procedure when monitoring your staff, but it also vital to follow procedure when using that information if you are faced with disciplining your staff. “In this case the disciplinary procedure is just as important as the monitoring procedure. If the disciplinary procedure is not followed correctly, employees would not only be able to bring unfair dismissal charges but could also claim that there has been a potential breach of the Data Protection Act 1998,” concludes Mr McDonnell.

If you would like more information about the Regulation of Investigatory Powers Act 2000, the Data Protection Act, please call Michael McDonnell on 01202 667866 or email mmcdonnell@coles-miller.co.uk.