Publish date

29 June 2021

What are the legalities of monitoring employees who work from home?

As discussed in the previous article in our series of pieces exploring working practices in the time of COVID-19, one of the biggest changes to our working lives has been working from home.

Even as we start to look ahead to a post-lockdown future, it seems an element of home working looks set to continue for many. As employers look for ways they can ensure that productivity levels do not suffer through home working, some are turning their attention to the practice of employee monitoring and how it operates as the employer’s eyes and ears in managing employee output remotely.

What is employee monitoring?

There are many types of employee monitoring, with a whole range of technology available to keep track of employees’ activities – from monitoring emails and internet usage, all the way to installing web cams or other cameras that for example sit under the employee’s desk and monitor how frequently and for how long they get up to go away from their desks.

Perhaps understandably, many people are deeply uncomfortable about the idea of their employer monitoring them in this way or at all.

While in some cases – for example in relation to traders working for investment banks – there may be good reason to carefully track what an employee is doing in order to comply with industry regulation, for the majority of organisations, the question should not so much be ‘can I monitor employees?’ as ‘do I really need to monitor employees?’. Some financial institutions, which use skype or other forms of instant messaging to keep people in contact, can use the same technology to check when the employee is off and on line.

Proceed with caution

Businesses considering implementing employee monitoring solutions need to carefully consider the business need for arguably invasive monitoring. Does this sit well with the culture of their organisation, where people perhaps are just left to get on and do their job and are empowered to do so.? As long as they deliver on their targets, what does it matter if they are not at their desk all day –  every day?

Aside from these issues, businesses also need to be very careful that they are complying with the law, specifically in terms of GDPR, The Human Rights Act and the Employment Rights Act.

However, as long as information is collected and processed legally and that means fairly and no more than is needed in a proportionate way, certain information can be gathered by employers for a number of reasons such as tracking productivity and ensuring the security of information or IT systems.

The exact nature of monitoring that can be lawfully carried out will depend on the business and its specific needs and obligations, but as a general rule it should be as unobtrusive as possible and proportionate to the risk the employer is looking to mitigate by monitoring employees.

It is also very important to be open and up front with employees before installing any kind of monitoring system and to have a detailed and robust policy in place.

Employers also need to be cautious when purchasing monitoring software as it will often have been developed in the USA, which has less stringent privacy and data protection rules than the UK.

In conclusion

We would urge businesses to think very carefully before going ahead with any employee deep-dive monitoring programme. Getting it wrong can at best lead to disgruntled employees, and at worst lead to claims of unfair dismissal or very large fines from the ICO.

Please get in touch if you need advice on any element of employee monitoring.

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