October 8, 2020

Those unversed in the world of covert operations may be unaware that it is not only possible but astonishingly easy, to buy and use recording devices.

It is also possible for those with somewhat unethical morals to install software onto laptops and computers that can turn on a laptop's webcam or microphone without the user being aware.

Such actions are liable to result in serious repercussions.

The world is taking privacy, data and infringement increasingly seriously, which can be seen by the introduction of GDPR in 2018 as the law tries to catch up to the ever expanding scope of technology.

Therefore, for those unwilling to follow the rules, there could well be grave consequences.

Should Employers Use Covert Monitoring?

It is advisable that employers refrain from making use of covert recording equipment, especially if it is to be used predominantly to watch over employees.

Such actions are almost certain to break data protection laws.

The Information Commissioner's Office (ICO) is not shy when it comes to dishing out fines to employers found to be guilty of breaching regulations.

However, while fines can be incredibly costly, some employers may be able to argue that they installed and made use of such recording equipment legitimately. Utilising covert monitoring devices if they suspect there is some element of illegality – theft or fraud, for example.

As an employer, if you are going to use covert surveillance, monitoring must be obtained as quickly as possible, and only as part of a specific investigation.

The monitoring must also stop when the investigation has finished.

Any covert monitoring must also ensure it is not positioned in areas where privacy is to be expected, such as toilets or changing rooms.

And all other options should have been exhausted before settling on covert recording devices as a route.

It is worth noting that, even if you, as the employer, believe you have acted justifiably, there is no guarantee that the ICO will agree with your decision-making process.

You could also end up being hit with a civil case, which could not only be financially detrimental but could ruin your companies reputation.

It is, therefore, not advisable to progress with any plans to install and exploit covert devices, without taking specific legal advice.

Have You Already Used A Covert Device?

If the use of a covert device has already occurred and an employee has been dismissed as a direct result, there is a strong chance that the (now former) employee could to pursue an unfair dismissal claim against you.

Should this happen, and if a tribunal is raised, it is very likely that Article 8 of the European Convention on Human Rights – which states that 'everyone has the right to respect for his/her private and family life, his/her home and his/her correspondence' – will be referenced frequently.

The employer will likely be asked to justify its process and explain why such a course of action was embarked upon.

The decision is, however, unlikely to go in the employer's favour.

What If It's Your Employee Using Covert Equipment?

If any employee is using covert recording equipment in your workplace, on the surface, engaging in such activity would be enough to be deemed gross misconduct, but this is not necessarily the case.

The employee could, for example, claim that they had a legitimate reason to use such a device.

At the same time, they could also pursue the line of claiming that they were not made aware of the employer's official policy regarding the use of covert devices.

While these arguments may seem flimsy, they could be enough to see the employee come out on top, especially if they can show enough justification.

Employers should also be aware that there is a risk of the company being hit with a claim should an employee make use of covert recording devices that ultimately end up unearthing private information or data.

In such an instance, the employer could find itself branded 'vicariously' liable.

This means that, despite the indiscretion being carried out without the employer being in any way aware or complicit, both parties could be blamed.

There is, of course, no guarantee that such a claim against an employer would be upheld, but it is a murky area, and the associated risks are quite clearly significant.

The reputational damage, as well as any financial costs that could be applied, should the employer be found at fault, could potentially be enough to ruin a business.

In cases where employees use hidden recording devices or engage in behaviours that are in something of a legal grey area, there are any number of stipulations, caveats or obscure precedents that could sway the outcome.

The best way to avoid difficulties is to very clearly explain the company policy to every employee when they join your organisation while also explaining the reasons why such a stance has been taken.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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