With constant oversight from police forces and local authorities, licensed premises are under constant pressure to ensure their staff maintain the highest standards of professionalism.

However, sometimes it seems as if the law is actively working against operators who want to ensure that staff are monitored. A huge amount of employee protection legislation, as well as scare stories in the press regarding the Human Rights Act 1998, often put employers off close monitoring of their employees. In particular, the Human Rights Act, which guarantees the right to respect for private life, has been seen as blocking an employer from putting into place monitoring systems to ensure that employees always act appropriately.

But so long as it is done properly, employee monitoring is not only possible but a very useful tool in making sure that misconduct up to and including criminal offences does not take place while employees are on licensed premises.

The Human Rights Act only covers covert or secret surveillance and so, as long as an employer makes it clear to employees that they are being monitored at work, whether by CCTV or otherwise, then there is no invasion of privacy and such activity is completely lawful. Where the camera is not hidden and the employee is open about the fact that filming is taking place, then an employee has no grounds for complaint.

However, sometimes an employer wants to employ covert surveillance to establish whether a crime is being committed, for example if stock goes missing, if the till is short at the end of the day or an employee is suspected of illegal use of drugs in the work place. The Information Commissioner, who is responsible for compliance with the Data Protection Act 1998 in the UK, has published a code that suggests that if images are being recorded with the purpose of learning about a particular person’s activities, then employers will have to justify why they are doing this, or the images may be in breach of the Data Protection Act.

The Information Commissioner suggests that if the employer has real reason to believe that a criminal offence or some other serious regulatory breach is being committed, then such covert monitoring will be justified. Equally it is true that such images may be inadmissible in a court or an employment tribunal if an employer cannot justify why they are being recorded in that way.

However, use of covert surveillance techniques simply to monitor employees’ compliance with their contract of employment and workforce policies will probably not be justified. Such monitoring should only be authorised by senior management, should be strictly limited to a period of time reasonably necessary to detect crime or serious malpractice and the number of people processing the evidence should be kept to a minimum. So long as the monitoring is not disproportionate, then it will be acceptable under the Data Protection Act and a court or tribunal will consider it admissible as evidence in any subsequent proceedings.

Similar “proportionality” arguments apply in respect of drug and alcohol testing of employees. In a licensed environment, where employees can be responsible for the safety of others, there may be clear health and safety reasons requiring an employer to introduce drug and alcohol testing. Employees should be notified that this policy is being introduced and, wherever possible, their consent obtained. Where an employee’s conduct or his performance gives rise to a suspicion that drug or alcohol abuse has affected him at work, then testing may be proportionate.