Is it illegal to snoop on employees?

It has never been easier to snoop on employees while at work.

Generally, employers can’t eavesdrop on “water cooler” conversations; install video surveillance in lockers or restrooms and – with some exceptions – they may not be able to examine the contents in an employee’s bag while they are out to lunch.

However, in some instances, workplace surveillance is necessary – for example, protecting employee safety and security, protecting IP or data loss, or preventing theft.

Take the fictional case of Scott who runs a small business importing Italian coffee machines. As Scott spent a lot of time visiting potential clients, he was often out of the warehouse for long periods. Over several months, he realised money was being stolen from the safe in his office.

Several employees had access to the safe, and Scott had no idea who was stealing the money. One Friday evening, Scott decided to place a hidden camera in his office to catch the perpetrator. The following Monday, Scott viewed the footage and discovered who had been stealing the money. He then removed the camera from the office, confronted the employee with the evidence and terminated his employment for serious misconduct. Scott also provided a copy of the recording to the police.

Like Scott in the example earlier, employers might be permitted to monitor an employee without them knowing (eg if they’re suspected of stealing), but secretly filming employees needs to be approached very carefully. It depends on what the purpose of the employer’s action is. For instance, if an employee is suspected of taking company property, an employer may want to monitor the person to gain evidence. If the employer lets the employee know, it could defeat the employer’s ability to find out what has occurred. If the purpose is to deter theft, however, the employer should ensure staff are aware, for example, that there is a camera overlooking a cash register. That footage can then usually be used as evidence if dishonesty is discovered, since that is the purpose for the surveillance.

Best practice tips.

If you’re thinking about installing video surveillance, here are some helpful tips to follow for best practice:

Develop a draft policy setting out why you are doing this, and when you will monitor (eg on a regular basis, only on suspicion that something untoward has happened etc).
Make sure the policy complies with the Employment Relations Act 2000 and the Privacy Act 1993.
Circulate the draft policy to your employees and discuss it with them.

Clearly explain your expectations of staff in the workplace and their responsibility for upholding the organisation’s privacy obligations.
Ensure all cameras are clearly visible and place signs at every entrance to let staff and customers know of the surveillance.
Make sure you don’t install cameras in private areas such as fitting rooms, shower areas, toilets or change rooms.

Employers should respect reasonable limits and not unnecessarily intrude into the private lives of employees. Intrusion into an employee’s privacy creates a suspicious atmosphere, lowers morale and can cause pressure and stress.

It’s a careful balancing act: employees and employers must work hand-in-hand to protect each other. We all want better protection for ourselves and our workplaces, but monitoring in the workplace has some clear and important privacy implications, particularly if it is tied to serious misconduct and termination of employment.

Download the free e-guide on employee performance and termination for guidance on how to manage serious misconduct, termination, and dismissal.

If you have questions about your business’s surveillance policy or what to do if you suspect misconduct in your business, it is best to consult with an Employsure Adviser first – before you act – on 0800 675 700.