Law Talk: Spying on staff raises many issues

You want to keep a check on your workforce, but how much is too much? Photo / Getty Images

Our new legal column kicks off with a look at spying in the workplace.

BOTH employers and employees must deal with each other in good faith.

Technology now provides employers with a range of tools to play Big Brother in monitoring their employees.

But, just because you can film the activities of your employees, should you?
You are well within the law to install video surveillance within the workplace, but employees must be made aware that filming may occur.

And cameras cannot be installed in areas where employees would have an expectation of privacy, for example bathrooms.

We recommend employers have signs which warn about surveillance equipment, and issue policies setting out when and where employees may be recorded.

Employers should also obtain their employees' consent or acknowledgement of this fact, best recorded in their employment agreement.

A reasonable exception to this is where an employer wishes to secretly video in circumstances such as in a theft investigation where disclosing to employees they are being recorded would defeat the purpose.

How about secretly recording conversations? Both employers and employees must deal with each other in good faith. Recording your employees without their knowledge is likely to breach good faith and be considered unfair to that employee.

It would undoubtedly be unfair if you recorded an employee having already indicated to them that the conversation is confidential, or for the purpose of catching them out and eliciting some sort of unfavourable reaction.

Recording an employee's conversation if you are not a party to it may also be a crime. Remember the involvement of the police in MP Todd Barclay's recording of a staff member?

Despite this, the employment authorities have shown a leniency towards employees that produce secret recordings as evidence in support of a claim. The best way to protect against this is to have a specific policy and provision in employment agreements prohibiting secret recordings.

Brittany Smith-Frank

Another useful tool to monitor employees is to install computer technology which records employees' usage (particularly personal usage) on work devices.

An employer may monitor productivity, if any confidential material has been downloaded or whether any sensitive commercial information has been forwarded to a competitor.

Again, one needs to be careful that employees are aware that computer usage is being monitored and the information collected is necessary for the business. Information about internet history during working hours would be necessary, collecting passwords of private social media accounts would probably not be.

Of course, if you are wanting to use any of these avenues to monitor your employees, you may want to ask yourself why. Perhaps there is already distrust, and secret monitoring is unlikely to have a positive outcome or rebuild the employment relationship.

You may also find that a simple reminder sent out to all employees that their computer usage is being monitored and video surveillance is operational is enough to deter misconduct and opportunistic behaviour.

Brittany Smith-Frank is a solicitor with Treadwell Gordon