This article discusses the legal considerations when an employer wants to monitor its employees, and how employers can ensure that employees have a work-life balance.
After the UK government announced the national lockdown, starting on Thursday 5 November, employers have awaited the detail of the law to understand what it means for workplaces. The new legislation provides that employers should decide whether “it is reasonably necessary for [the person] to leave or be outside [their] home for the purposes of work… where it is not reasonably possible for [the person] to work, or to provide those services from home”. As a result, employers should keep their offices closed, especially if they were closed during the previous national lockdown, from March to June.
As employees face an indefinite period of working from home, some employers are beginning to feel concern about not knowing exactly what their workers are up to, and being unable to monitor productivity, causing an increased interest in monitoring software which can provide information to employers are employees’ activity.
How is monitoring changing and what do employees think?
Unsurprisingly, employees are not happy with being monitored while working in their home. A recent poll by revealed that:
Nevertheless, one employer in the UK has already been using software to track workers’ hours, keystrokes, mouse movements and websites visited. In the United States there has been an increase in demand for software that monitors employee activity. Tech websites are now reviewing different monitoring software and making recommendations to suit businesses of different types.
The European approach to employee monitoring is defferent from the approach in America. Earlier this year, one UK company stopped plans to introduce a software which tracked the time employees spent at their desks, due to negative backlash. Furthermore, a German regulator recently handed down a €35 million fine to an employer found to have engaged in unlawful monitoring.
How can employers strike the right balance in monitoring staff?
Employers are facing the question of how they can monitor employees without incurring large fines. Any decision to monitor employees requires consideration of employees’ right to privacy in their workplace. Under Article 8 of the European Convention on Human Rights, public authorities
This right will normally be breached if the employee had a reasonable expectation of privacy in relation to the communications in question and, if so, whether the infringement was in accordance with the law and proportionate. Although Article 8 makes express reference to public authorities, the Human Rights Act 1998 incorporates it into UK law and is generally relevant to all employers, including those in the private sector.
But this leaves the question of what specific limits apply to employee monitoring in the UK? Guidance can be found in the employment practices code published by the Information Commissioner’s Office (ICO), which sets out good practice when employers are considering implementing a monitoring regime. The key is to follow the three principles of transparency, proportionality, and legality. In summary, employers should:
- Complete a privacy impact assessment setting out the purposes of the monitoring and justification for it, the negative impact on data subjects, and any mitigation.
- Inform employees of the monitoring and the reasons why it has been adopted.
- If sensitive data is being processed, ensure that there is a legal basis for such processing.
- Limit the number of people who have access to the software and ensure they are properly trained in confidentiality and data security.
- Avoid using covert monitoring except in the most extreme circumstances (e.g. where criminal activity or similar is suspected).
While the ICO code provides helpful guidance on how to implement a monitoring regime, there are further legal considerations. These include the mutual duty of trust and confidence implied into the employment contract between employer and employee. Neither party should act in a manner likely to destroy the relationship of confidence and trust between them. An employer’s breach of this duty may allow the employee to claim unfair constructive dismissal, with financial and reputational consequences. We are not currently aware of any case-law examples in the context of remote working and monitoring, but they could arise in future.
Impact of monitoring on workforce wellbeing
Employers should also carefully consider the wellbeing of their workforce and the impact that employee monitoring may have. Employee relations are likely to suffer if employees believe there is an insufficient level of trust between them and management. The way in which organisations respond and adapt to new technologies that allow for employee monitoring will have significant implications not just on the future trust of employees, but also that of consumers and wider stakeholders.
Early research in this area shows that monitoring and surveillance can negatively impact trust in management, specifically for employees in manual, highly standardised roles.
Considering employee views at an early stage is therefore crucial for maintaining trust and minimising risk of cultural damage. Careless implementation may lead employees to experience stress, underperform, and ultimately leave – destroying a company culture that might have taken years to build. This may be avoided by organisations allowing employees to be part of the process of implementing monitoring technology, allowing employees to see the potential benefits.
With increasing numbers of staff requesting flexible working and a second national lockdown being introduced in the UK, monitoring measures are likely to become more relevant and prevalent in the future. Employers should respect the balance between home and work, to avert unwanted legal, reputational and relational ramifications. After all, we may be working from home, but we don’t live at work.
We have tried to cover the frequently asked questionas in the area of Employment Law and COVID 19 at the moment. If you have any specific questions you would like advice on, then please contact:
Abi.Frederick@lewissilkin.com or koichiro.nakada@lewissilkin.com of Lewis Silkin LLP.
