Employee surveillance: getting the balance right

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Labour has called for greater protections for workers whose employers use software to monitor activity while working from home – a practice that the law does not expressly permit or prohibit. Richard Fox and Eleanor Lynch look at how employers should approach this grey area to avoid falling foul of data protection rules and tribunal claims.

While working from home and flexible working arrangements have long been available, the impact of the Covid-19 pandemic has drastically increased their prevalence in the UK – this has been mirrored by a boom in the use of “productivity intelligence” software by employers.

In a November 2020 report the TUC found that 15% of workers had seen an increase in employer monitoring since the start of the pandemic. In addition, one in five firms have admitted to implementing or planning to introduce “secret software used to spy on staff”, according to YouGov.

Remote employee monitoring software, designed to measure productivity, can track data including the number of mouse clicks, keystrokes, emails, applications used and time spent on particular sites.

The California based company Prodoscore which monitors emails, work documents, calendar appointments and even transcribes internet-based phone calls to produce an overall productivity score was reported by The Sunday Times to have had a six fold increase in sales since the start of the pandemic.

Other providers include Transparent Business, which sends screenshots from employee’s computer screens throughout the day to show their boss what they have been doing, and Time Doctor, which uses the camera on work laptops to take photographs of employees roughly every 10 minutes to determine how often they are at their desks.

There are now many companies reporting that their employees will want to continue to work from home post lockdown, and many employers – including Dropbox, Twitter and Fujitsu – are actively encouraging them to do so.

With remote or hybrid working likely to remina in place for many years to come, employee surveillance will to be an important consideration for employers and employees alike.

What the law says

In the UK we do not have data protection legislation which specifically addresses the issue of employee surveillance, although there is much guidance in, for example, the Employment Practices Code issued by the Information Commissioner’s Office.

There are some industries for which employee monitoring is necessary not just as a tool of management, but in order to achieve legal or regulatory compliance. Firms that are authorised by the Financial Conduct Authority must demonstrate that there are processes and safeguards in place to meet regulatory requirements. Regulated firms are required to record telephone and electronic communications of staff engaged in sales and trading.

Due to the increase in homeworking because of the pandemic, the FCA has acknowledged that it will not always be possible to record calls. However, it has said it expects firms to inform them if this is the case, and to take steps to mitigate any risk. This month itbrought up to date its expectations in this respect, bringing to an end the leeway they had originally granted when the pandemic first struck.

Monitoring productivity

However, employers may want to be more cautious where justification for increased surveillance relates to productivity or management information, rather than regulatory compliance.

Article 8 of the European Convention on Human Rights, as incorporated into UK law by the Human Rights Act 1998, provides individuals with the right to respect for private and family life. There has not yet been any case law in the European Court of Human Rights on the extent to which monitoring of homeworkers infringes upon reasonable expectations of privacy. However, given the sharp rise in employees working from home around Europe, it is likely that there will be cases examining this in the near future.

There must be an appropriate lawful basis for monitoring employees, for example, increasing productivity or to ensure compliance with policies.”

Earlier this week Labour’s shadow digital minister Chi Onwurah argued that “workers should not be digitally monitored without their informed consent. Ministers must ensure people have a right to privacy in their workplace or home — which are increasingly the same.”

There is always a duty of trust and confidence implied into an employee’s contract of employment. An employer’s monitoring of their employee working from home may constitute a breach of this implied duty and the employee may be able to bring a claim for constructive dismissal. Employees may also point to the fact that employers have used surveillance data in disciplinary proceedings to support claims to the employment tribunal, for example for unfair dismissal.

Considerations for employers

If employers wish to install employee monitoring tools they will need to tread carefully. International organisations especially will not be able to implement monitoring software across multiple jurisdictions without seeking specialist legal advice.

Organisations should consider the following before introducing monitoring software:

Employers must be transparent and inform employees of their intention to commence employee monitoring and provide detailed information about the monitoring planned. They should also seek their employees’ consent to provide protections.
There must be an appropriate lawful basis for monitoring employees, for example, increasing productivity or to ensure compliance with policies. However, the employer’s interests must be balanced against the employee’s expectations of privacy.
Employers should act in a proportionate and justifiable manner by ensuring that there is no other suitable option available.
Safeguards should be put in place such as password protection and encryption to prevent abuse. Data must only be used for the purpose for which it was collected.
Employers must be cautious in limiting monitoring to only certain employees as this may risk claims for discrimination.

It is clear that employee surveillance is likely to become more of an issue as employers strive to supervise a remote workforce.

If it is considered that the technology is being abused, damaging trust in the employment relationship, and disproportionately and unjustifiably affecting the rights of employees, we may expect this to be examined by the courts and tribunals, and quite possibly the government.