Monitoring in the workplace must be done lawfully. There are many examples of where employees have taken on employers for unlawfuly monitoring their communications (like telephone calls) in the workplace, especially their electronic communications (like email and SMSs). We can help you to lawfully monitor activities in the workplace. It depends on whether you have the written consent of every employee to monitor, or not.

If you have written consent

Getting all employees to consent in writing is first prize. The consent must be properly worded and can take the form of a:

  1. standalone written consent,
  2. written consent to monitor clause for new appointments for inclusion in your existing employment contract.

The reasons for having properly worded consents are as follows:

  • the employee is contracting out of a constitutional right, which is ‘more important’ than a non-constitutional right
  • RICA, our monitoring law, deals with paper documents, as well as electronic documents (a fact which is often overlooked)
  • it is debatable whether RICA only applies to monitoring taking place in real time (RICA refers to monitoring a communication during the “course of its occurrence or transmission”) or to stored data as well. This has very important practical ramifications for the organisation regarding what it can monitor.

If you don’t have consent to monitor

Where an organisation has not obtained written consent, it can nevertheless monitor in specific circumstances by following a procedure. You need the following documents as a package:

  1. Explanatory note how the package ensures you comply with RICA;
  2. Guidance note on how to use the monitoring package;
  3. Written Authorisation to monitor (from the “system controller” who is the persons responsible under RICA);
  4. Policy for users (to regulate monitoring of email in the workplace);
  5. Policy for technical staff (to regulate what they can and can’t do);
  6. Policy for call centre staff [not part of bundle] (to regulate the company’s monitoring of call centre personnel);
  7. Guidelines for technical staff (to provide with guidance so as to monitor lawfully);
  8. Pro Forma Monitoring Request re-usable template;
  9. Pro Forma Monitoring Board Report re-usable template (for King III purposes);
  10. FAQ and Glossary of Terms;
  11. A properly worded visitor sign in sheet and notice at the entrance to the company building where CCTV cameras are used on company premises.

Automated monitoring legal solution

We have developed legal solution using technology which automates the process for the obtaining of requests to monitor as covered in items 8 and 9. If you are interested in knowing more about this, please contact us.