The Necessity
The word "monitoring" was not commonly associated with employment law 20 years ago. Today, it is one of the most talked-about issues facing employers in the modern workplace.
Put aside connotations of "Big Brother" when thinking about workplace monitoring. In many situations, there are good reasons for employers to monitor their staff in the office or on the factory floor - in fact, many are legal obligations.
The idea of what constitutes a workplace is changing and is no longer limited to the physical world. The obligation of employers to protect staff, customers and the public from harm extends beyond a business premises to the email inbox, and now to the smartphone.
The Methods
In the office environment, where the bulk of work is done via phone or computer, monitoring methods are diverse and rapidly changing. In some respects, that change will always be reactive - as the nature of work changes, so too does workplace monitoring. This can include email monitoring, internet browsing data and telephone use. However, despite the technology involved, staff monitoring is very much an HR issue.
As the technology sprawls, the regulation around its use does too. Data security is an area of regulation that is moving rapidly. In Hong Kong, employers must keep in mind that in the act of monitoring, they will be collecting personal data - which is regulated by the Personal Data (Privacy) Ordinance. That means companies that monitor the communications of their staff are taking on more onerous obligations than they may realise.
The Privacy Commissioner has published guidelines on monitoring and personal data privacy at work. If an employer is asked to explain and justify its monitoring practices, it is vital they can demonstrate due regard for, and compliance with, the guidelines.
The Criteria
The crucial judgment employers need to make before monitoring is to work out whether it is necessary. The guidelines set out convenient benchmarks to make that determination: assessment, alternatives and accountability.
Employers must assess the potential risk and benefits associated with monitoring. They must assess whether it is reasonable and fair - and whether the monitoring could have a negative impact on the employees concerned.
Employers must consider alternatives before opting for electronic monitoring. Is there something less intrusive than, for example, covertly monitoring emails that the employer can do to gather the same information? For instance, if an employer was concerned about a staff member's chronic lateness, emails may be less effective and more intrusive than security logs or personal observation.
Finally, it is vital employers recognise they are accountable for the data they collect in the process of monitoring. Workplace monitoring is as much about the storage, retention and eventual destruction of data as it is about collecting it in the first place.
This can be the undoing of many employers in terms of compliance. The key for employers who want to at least have the option to monitor workers is to have a rigorous system in place before monitoring someone.
The Management
In managing personal data retrieved through monitoring, employers should follow "the three Cs": clarity, communication and control.
Companies should have a clear, written policy on how monitoring will take place, in what situations it will be used, and for what purposes the resulting data will be used.
Those principles should then be clearly communicated to staff in a coordinated way. This should be done when employees join the organisation and refreshed regularly.
The last crucial step is the safe storage of the data. If that data is used outside of the monitoring policies in place, then the company may be violating the legal rights of employees.
The desire to monitor staff will only increase in a globalising world with geographically diverse workforces. However, there is considerable risk for companies that don't take care when setting up a monitoring process.
Kathleen Healy is a partner in Freshfield's expanding Employment, Pensions and Benefits practice in Asia and specialises in advising on Asia-Pacific employment and HR projects.
Laura Chapman is a senior associate in Freshfield's Employment, Pensions and Benefits team based in Hong Kong. She has a broad range of experience advising employers on both contentious and non-contentious employee matters throughout the Asia-Pacific region.
The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.
