Monitoring your employees lawfully
Andrew Egan from Newbury-based Andrew Egan Associates Employment Solicitors answers your legal questions
WITH more and more people choosing to work from home and/or being required to work from home as a result of the Covid-19 pandemic, a number of questions arise for employers about the extent to which they can monitor the work activities of their employees.
At what point does staff monitoring become an invasion of privacy?
When does keeping tabs on staff overstep the line?
Being transparent and informing employees about the nature and content of monitoring is the key to this being successful in the workplace.
It is generally good practice for businesses to have monitoring policies and to ensure that employees are familiar with those policies, so that they can fully understand and comply with the monitoring process. Employers need to be careful that they do not fall foul of data protection rules and possible employment tribunal claims for constructive unfair dismissal and breach of contract.
Some companies have implemented or plan to introduce software to be used to ‘spy on’ or monitor staff, designed to measure productivity, track data including the number of mouse
clicks, keystrokes, emails, applications used and time spent on particular websites. Many companies are reporting that their employees will want to continue to work from home post lockdown, and some large employers are actively encouraging them to do so. With remote or hybrid working likely to remain in place for many years to come, employee surveillance will have to be a very important consideration for employers and employees alike.
Some industries require employee monitoring not just as a tool of management, but in order to comply with legal or regulatory requirements. Firms authorised by the Financial Conduct Authority, for example, 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.
However, other 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 is a need to look at the extent to which monitoring of homeworkers infringes upon reasonable expectations of privacy.
However, given the rise in employees working from home, it is likely that there will be employment tribunal cases examining this more closely in the near future.
There must be an appropriate lawful basis for monitoring employees.
There is also a duty of trust and confidence implied into the working relationship between employer and employee.
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 unlawfully used surveillance data in disciplinary proceedings, in order to support claims to the employment tribunal, for example, for unfair dismissal. Employers wishing to install employee monitoring tools should consider the following before introducing monitoring software:
1. Employers must inform employees of their intention to commence employee monitoring and provide detailed information to employees about the monitoring planned. They should also seek their employees’ consent to provide protections.
2. There must be an appropriate lawful basis for monitoring employees, for example, increasing productivity or to ensure compliance with the employer’s policies. The employer’s interests must be balanced against the employee’s expectations of privacy.
3. Employers should act in a proportionate and justifiable manner by ensuring that there is no other suitable option available.
4. Employers should put in place safeguards such as password protection and encryption to prevent abuse of the processes. Data must only be used for the purpose for which it was collected. 5. Employers must be cautious if they limit any monitoring to only certain employees, as this may risk claims for employee discrimination.
Employers need to be wary that if it is considered that their technology is being abused, and that they are damaging trust in the employment relationship with staff which may be disproportionate and unjustifiably affecting the rights of staff, then they may find themselves on the wrong side of an employment tribunal claim they can ill afford. Employers should ensure that they have the correct policies and procedures in place to deal with employee monitoring, and to cope with the shifting landscape in working practices and places of work.
For advice on employee monitoring matters, call Andrew on 07904 391756 or (01635) 890560.
Email Andrew@ andreweganassociates.co.uk