With IKEA accused of spying on employees, Laceys look into how to monitor staff lawfully.
On 22 March, it was being widely reported that the French subsidiary of IKEA was being prosecuted in France. The offences centred around the company allegedly engaging private detectives and police officers to provide confidential information on employees and job applicants.
The reports sit more comfortably with a Hollywood script than the HR practices of such as well-known and trusted global brand. It seems that the company really did decide to engage some DIY tactics. It is far from a joke however and is brand-damaging.
‘I’m watching you…’
It does raise the question (one that comes up often in the HR world) about what a UK employer could and should know about their staff. Most would agree that any employer should have some ability to know about serious criminal activity for example.
‘I have often been asked about privacy issues by employers’ said Robin Watson, Head of Employment at Laceys Solicitors. ‘The issues range from covert cameras to the political beliefs of employees’ explained Robin.
When recruiting, it can be tempting to find out more about applicants’ personal lives.
‘Unfortunately, the use and reliability of previous employment references does not help an employer really know who they are employing’. That is why employers will sometimes turn to their own web-based research or seek professional or unfortunately, underhand help’ said Robin.
What do you want to know and why?
‘The first thing that I ask my employer clients when they raise the issue of employee privacy, is “what” they want to know and secondly, “why?” said Robin. ‘By gaining an understanding of the “what” and “why” helps my client to approach privacy from the right way’ advised Robin.
For example, some employers have taken to researching an employee’s or job applicant’s background, social and personal life or health. These days this can be done simply by using social media and web based search engines.
Often employers can also be tempted to pick up the phone and start to ask questions or gather information from a job applicant’s previous employers. These steps are rarely covert and traces of activity can remain and be exposed later.
This has to be contrasted with genuine pre-employment vetting, which, if carried out lawfully, is permitted and in some industries, obligatory.
Secret searches or investigations create a risk of a claim and careful thought needs to be given to what and how research on individuals is completed, if at all. Unconscious bias, discrimination and impaired inclusion and diversity all have a role in such activity and consequently create a risk.
It can be possible to lawfully monitor employees whilst at work to some extent, but a careful approach must be taken and with legal advice. Software exists that can monitor websites visited, phone calls made and internet searches at work for example. These tools must be used with the right approach and legal foundation.
‘The important thing is to have a proper understanding of the legal basis that must underpin the monitoring in the first place’ said Robin. ‘Consent, notice, GDPR and human rights all play a part and having a policy is best-practice’ cautioned Robin.
Issues relevant to employee monitoring
- There remains some uncertainty in the UK around what an employer is able to do by monitoring employee’s activity and involves court interpretation
- This makes it difficult to be easily reassured and much depends on the type and extent of any monitoring
- Don’t guess – get specialist employment law advice
- Be familiar with the Information Commissioner’s guidance called the ‘Employment Practices Code’, which although is not up-to-date with the GDPRs, remains very useful
- Employers should undertake data protection impact assessments prior to any monitoring and comply with their own policies
- It is not quite as simple to say that everyone as a right to a private life whilst at work
- It can be possible to monitor employees, but the need must be clear and the extent reasonable
- It is best-practice to formally adopt a policy on the extent that any monitoring that takes place in the workplace (which could be at home or a vehicle too)
- Review existing policies regularly with an employment law specialist and obtain advice on implementing one if none exists
- One policy will not be enough – policies covering emails; internet use; phone calls; using own-devices; IT equipment; working from home and remotely must be considered
- It is unlikely that carrying out secret social media searches on job applicants will be lawful
- The risk of doing so can cause unconscious bias; discrimination and likely to be challenged
- If vetting is necessary, take legal advice on how it can be done lawfully
‘This is a very complicated area of employment law and in inexperienced hands, it can be disastrous, as the IKEA report shows. The best advice is to speak to an employment law specialist if you currently monitor or research any of your employees or job applicants (so that your practices can be reviewed), or want to start to do so’ advised Robin.
Reports on the IKEA case can be read here:
If you would like any further information or advice on this subject please contact Robin Watson in confidence on 01202 755204 or email firstname.lastname@example.org