Monitoring your employees: yes or no?

In this new era of enforced homeworking, frequent media reports show a rising demand for computer monitoring software that can be installed remotely and used by employers to silently monitor employee activity. But what are the implications of this?

New ways of working

The onset of the national lockdown resulted in a vast increase in the numbers of employees working from home, with businesses having to adapt their ways of working almost overnight. That trend shows no signs of slowing down, with the government guidance encouraging employees to work from home where they can and non-essential offices remaining closed in parts of the UK for the foreseeable future.

From an employee perspective there are understandable privacy concerns when the workplace and home become one and the same. On the other hand, employers have a legitimate interest in employee productivity and conduct during working hours and the shift to having no physical oversight of work is quite a drastic change for many employers who are used to traditional office-based working as well as making management of performance even harder.

A “yes” for surveillance?

Surveillance of employees, for want of a better term, has been the subject of significant litigation in the past in the context of covert surveillance in the workplace and the impact this has on employees’ right to a private life. Generally speaking, the employer’s need to protect a legitimate business interest plays a key part when considering the appropriateness of workplace surveillance as against employees’ expectation of privacy.

However, this is somewhat different to surveillance of employees at home. So, what can employers do to strike a balance between effective performance monitoring in this new era of working from home whilst respecting employees’ privacy and maintaining trust with employees?

There is no suggestion that employees should be completely free of monitoring during working hours even whilst working from home. However, employers should be mindful of the proportionality of, for example, monitoring software as against the legitimate business interests they are trying to protect.

From a data protection perspective, electronic surveillance (such as monitoring of email or internet use) involves processing of employees’ personal data. In such circumstances, employers would be required to carry out a data protection impact assessment before carrying out any planned monitoring, to ensure that a balance is met between meeting the business need and respecting employees’ privacy rights. Employers must then tell employees if and to what extent and they are being monitored, and how any resulting information will be used and with whom it will be shared. Privacy notices and policies addressing the use of the employer’s equipment are typically the best way to convey this information. Such policies should address, for example, the inappropriate use of email and internet access and clearly identify the consequences of any such misuse. Where surveillance will be used to review working time or productivity this should also be explained.

Copies of these policies should be given to employees at the start of their employment, ideally also having them sign an acknowledgment that they have read and will comply with the policy. Any changes to policies should also be well-publicised.

A “no” for surveillance?

However, employers must also be mindful of the impact of monitoring software so as to avoid any claims for breach of trust and confidence and subsequently constructive unfair dismissal. If it is alleged that monitoring activities are excessive or unwarranted, employees may well have the basis for such a claim.  Similarly, any specific targeting of employees may well lead to discrimination claims.

Use of such monitoring software could also arguably have unintended consequences for employees’ mental health if they feel that they are being invasively monitored in their own private space. Again, consideration should be given to the legitimate business need for such software.

Any software used should also be limited to ensure that the data collected goes no further than is necessary for the purpose for which it is being collated and is not used for any other purpose. For instance, if the employer’s aim is to monitor productivity regardless of when work is carried out, it is important that the software does not then monitor working hours. Excessive collection of personal data or using it for other purposes would constitute a breach of data protection legislation.

Summary

In conclusion, there is no right or wrong answer and much will depend on the extent of the monitoring and the reasons for it.

We may well begin to see increasing legislation in the area of privacy rights under the European Convention of Human Rights in the context of surveillance of employees at home. Given the unprecedented nature of the current pandemic and the requirement for our existing laws to adapt to these unforeseen consequences, it is really a waiting game to see which way the courts might fall between an employer’s legitimate need in protecting their business and an employee’s legitimate expectation of privacy at home.