In a recent YovGov / Skillcast survey it was found that 20% of employers have implemented or are planning to implement online software to remotely monitor employees. It appears that managers are increasing their level of surveillance on employees with continued remote working raising concerns about employee’s productivity. Is monitoring staff like this the right thing to do and is it lawful?
Monitoring may involve checking log in and out times, ensuring employees are ‘active’ during their working hours or insisting that webcams are turned ‘on’ during meetings or during the working day. The information obtained can then be used by employers to discipline or exit staff. So, for example, the failure to log onto a monitoring app at the start of the day works in the same way as an employee who is late for work. Monitoring can go much further though with monitoring the volume of calls, keystrokes and the content of emails employees are sending.
If you are monitoring employees or are considering doing this it is important to consider the legal implications. From a data protection angle, the ICO guidance says workers should be aware if monitoring is being carried out and the specific and legitimate business reasons why. Employers should speak to employees if they intend to install monitoring software and ensure the reasoning is reflected in policies. If you plan to monitor emails then it’s important you make staff aware that you may access their emails, why the information is being obtained, how the information is used and who it may be disclosed to, if anyone. We recommend you have a clear statement in your contract, that you explain the reasons for monitoring in a privacy notice which should be kept up to date and that you have home working policies which set out how you will monitor staff’s activities too. This can act as a deterrent to encourage to improve productivity.
In a recent case considered by the European Court of Human Rights (Barbulescu v Romania), an employee successfully argued that their right to a private life had been breached as their employer had failed to tell them about the extent of monitoring. The employee had used his work account to send emails to his fiancé and when confronted he denied sending the emails. The employer proceeded to access the account and collect evidence of breaching Company policy not to send personal emails. The employer had failed to warn him the content of his personal communicates may be monitored which meant he was successful with his claim.
Monitoring could be helpful in checking up on employee wellbeing, for example when monitoring the number of hours an employee is working. It could also highlight when an employee is struggling at home and needs some training to do the role.
Is monitoring a good decision or is it a sign of a lack of trust in the employment relationship?
It can certainly give the wrong impression depending on how this is implemented and communicated to employees. Employees may feel they are not trusted if their calls are being tracked by management, especially if this had not happened in the physical workplace. To facilitate strong relationships with employees you want to retain going forward, it is important to consider monitoring very carefully and whether or not it is reasonable and necessary. Instead of monitoring, it might be useful to explore other options, such as proactive management of employees by checking in with them regularly and giving clear targets to meet during the working day.
Can Loch Associates Group help?
If you need help with any employee issues or assistance in preparing and introducing appropriate policies, then get in touch with our employment lawyers.