Article by Simran Lalli, Solicitor, Employment department
Since the COVID-19 pandemic and subsequent lockdowns, firms across the world have seen more and more of their staff adopt a flexible working setup, with many still working from home at least once or twice per week. This has created significant challenges for some businesses and led to several employers investing in activity tracking software to monitor their workforce.
The Chartered Institute of Personnel and Development (CIPD) asked over 2,000 bosses who agreed that data should be collected on homeworkers. It was found that 55% of bosses surveyed agreed with collecting information on regular home workers, including the amount of time spent on laptops each day and behaviours around sending emails to identify risk of burnout.
Whilst there may be some benefits to employee monitoring, employers should be mindful of the legal implications.
The Information Commissioner’s Office (ICO), the UK’s regulator for data protection, issued draft guidance on monitoring at work on 12 October 2022 (https://ico.org.uk/media/about-the-ico/consultations/4021868/draft-monitoring-at-work-20221011.pdf) which is out for public consultation. This guidance will replace the section of the Employment Practices Code that considers monitoring at work. It considers the key issues of transparency, proportionality, and legality.
In weighing up the merits of monitoring, the interests of the employee must be balanced against those of the employer. Where an employer is considering monitoring its employees, they must first undertake a data protection impact assessment (DPIA) to assess the necessity and proportionality of the proposed data processing.
An employer should also consider Article 8 of the European Convention on Human Rights (ECHR) which provides everyone with the right to respect for their private life and family life, their home, and their correspondence. This includes the right to privacy in the workplace.
A recent case in the Netherlands highlights the fine line between employee surveillance and breaching Human Rights laws. The US based company wanted the employee to keep their web cam on during a remote training session and share their desktop. When the employee refused, they were dismissed. The Court ruled in favour of the employee citing a ECHR ruling which said “video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee’s private life”. There was no sufficient justification for the monitoring, and the employer had therefore violated the employee’s privacy rights. The employee was awarded more than £44,000 plus their court fees and compensation for loss of earnings and unused annual leave.
The ICO guidance says that employees should be aware if monitoring is being carried out and the specific and legitimate business reasons why. Employers must meet a high standard in terms of the level of information provided. Employees must have a clear understanding of:
- When information about their email/internet use will be obtained.
- Why it is being obtained.
- How this information will be used.
- Who it will be disclosed to.
This information is usually provided by way of an email, or an electronic communications policy issued to staff at the start of their employment.
Lastly, the duty of trust and confidence implied into an employee’s contract of employment is also an important consideration. Employee monitoring, in some circumstances, may constitute a breach of this duty and may give rise to a claim for unfair constructive dismissal by a qualifying employee.
If you require advice in this area, the Grant Saw Employment department offer free dedicated Workshops which you can learn more about here. If you require advice on a specific matter, please feel free to email me or contact the team on 020 8858 6971.