In October 2022 the Information Commissioner’s Office published for consultation its new guidance on monitoring at work, as part of its Employment Practices Code. The new guidance covers both systematic monitoring, such as software to monitor productivity, and occasional monitoring as a short-term response to specific needs. The sensitivities around employees’ expectations of privacy and risks of interference with the employee’s private and family life are compounded by the increase of homeworking.
Recent advances in technology mean that there are now numerous ways to monitor employees, including via webcams on staff computers or by checking browser histories, email content and phone records or the analysis of employees’ biometric data. Productivity-tracking software offers a raft of ways to assess how employees spend their working day. Employers can also keep tabs on their employees’ movements through the working day using CCTV, vehicle location tracking, dash cameras and devices, or access cards which track employees’ movements in the workplace.
Employers have an increasingly wide range of ways to monitor employees and their productivity. However, just because these forms of monitoring are readily available does not mean that using them is risk free.
Listed below are the pros and cons of employee monitoring and we explain the numerous legal and policy considerations for employers.
Benefits of employee monitoring
Monitoring is often justified in order to improve productivity, as a means of providing information for workflow analysis or as part of risk management.
Some software allows businesses to see where individuals or whole teams are taking longer than expected on particular tasks, and this information can be used to identify opportunities to improve processes, reallocate resources, or indicate where training is needed.
There are many ways in which employees can create liabilities for their employer, such as poor customer service, and most of us are familiar with the recorded message warning that a call may be ‘recorded for training purposes’. Other risks include breaching regulatory requirements, unauthorised disclosure of confidential information, copyright infringement, employee negligence or processing personal data about other people in breach of data protection law.
If your employees know that they are or can be monitored, this can act as a deterrent to behaviour that could cause trouble or otherwise create risks. Records produced through employee monitoring can provide crucial evidence in disciplinary investigations and to support performance management processes.
Employers are usually liable for the conduct and actions of their employee when they are at work, or there is a sufficient connection to work. For instance, the Employment Appeal Tribunal in Moonsar v Fiveways Express Transport Ltd [2002], found that male employees downloading pornography on their computer screens was sex discrimination against a female colleague.
Drawbacks to employee monitoring
Some employers prefer to use little or no employee monitoring, suggesting that it leads to an erosion of trust or unreasonably invades their privacy.
In some cases, employees may experience increased work-related stress from feeling that someone is constantly looking over their shoulder. Employers may have concerns that monitoring could have an impact on employees’ health and wellbeing, particularly for those who are already experiencing poor mental health, as well as being damaging to recruitment and retention.
There are several legal frameworks which need to be considered if you intend to introduce employee monitoring:
- Human rights – Depending on the facts, human rights can be engaged as employees can have a reasonable expectation of privacy at work. Monitoring could infringe the right under the European Convention to respect for one’s private and family life, home and correspondence. The European Court of Human Rights in Halford v UK [1997] found this was the case when a senior police officer’s phone was tapped by her employer. She was not told that her phone calls could be monitored, and one phone line was designated for private use. A breach of the employee’s right to privacy under the Human Rights Act may be relevant in determining whether an employee was unfairly dismissed.
- Data protection – Data protection law applies to monitoring employees. It determines what, how and why employers can monitor, as well as what employees need to know about the monitoring and who can deal with the information. The Information Commissioner’s Office’s Employment Practices Code and supplementary guidance give guidance on monitoring at work. It was created under the old Data Protection Act but remains valid under the GDPR and the Data Protection Act 2018. As mentioned, new monitoring at work guidance has recently been published for consultation. Complying with the GDPR involves careful consideration of your aims and through impact assessments weighing these up against the interference with the employees’ privacy. We can help you with this balancing act, as well as ensuring your processes and privacy notices are GDPR-compliant. Data protection law also applies to surveillance. The ICO has published guidance on video surveillance.
- Interception of communications – Monitoring phone calls and checking emails fall under the Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-Keeping Purposes) Regulations 2018. These regulations allow employers to intercept calls and communications through work phones and IT systems, that would otherwise be unlawful, provided the employer meets the relevant conditions. We can advise you on compliance with these.
- Constructive dismissal – Monitoring an employee’s activities, particularly where this is covert or unreasonably intrusive can breach the implied duty of trust and confidence. This allows the employee to resign and claim constructive unfair dismissal.
- Discrimination – Finally, employers should take care to ensure that any monitoring is done consistently, or any treating of certain employees differently is justified. Where an employee considers they are being unfairly targeted and this relates to a protected characteristic such as gender or race, they can bring a claim for discrimination and/or harassment.
- Covert monitoring – Covert monitoring or covert CCTV surveillance will only be lawful in exceptional circumstances, where a less intrusive approach is not appropriate and where criminal activity or similarly serious activity is suspected, for example shop workers stealing from the shop. It must only be for a limited period of time and as few people as necessary should see the footage. Surveillance in a location where employees have a high expectation of privacy, such as toilets or changing rooms, is unlikely ever to be lawful.
Policy considerations
A cornerstone of lawful monitoring is to ensure that employees are made aware of the monitoring, the extent of the monitoring and how the information will be used. This should be clearly set out in relevant policies, particularly on internet and email use. We can advise you on the contents of the policy, ensuring employees are aware of it and effectively implementing it.
How we can help
We can help you safely implement employee monitoring to ensure that these important tools work for your business. For further information, please contact Patrick Glencross, Senior Associate, in the employment team on 01227 763939.
Please note: This article is for general information only and does not constitute legal or professional advice.
