Looming lockdowns and remote working – to what extent can employees be monitored?

As people face an indefinite period of working from home where they can do so, some employers are beginning to feel the pressure of not knowing exactly what their workers are up to. Employees have grown to expect some degree of work presence in their home, thanks to video calling (even when they might be in “dress down” mode!) But can employers actively monitor those who are working remotely and, if so, how intrusive can that monitoring be?

How is monitoring changing and what do employees think?

Unsurprisingly, employees are generally reluctant about being kept under check while working in their home. Prospect, the trade union for engineers, managers, scientists and other specialists, recently commissioned a poll canvassing employee attitudes to workplace monitoring. The results revealed that:

• 80% of workers would be uncomfortable with camera monitoring

• 66% of workers would be uncomfortable with keystroke monitoring

• 48% of workers believed that monitoring software would damage their relationship with their manager (62% among younger workers).

Some news reports might lead you to believe that employees will need to start living with a more Orwellian approach to employee monitoring. One employer in the UK, for example, has been using software to track workers' hours, keystrokes, mouse movements and websites visited. Businesses adopting this kind of approach may have taken inspiration from the United States, where there has been a surge 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, however, less forgiving than that of our American cousins. Earlier this year, one UK employer faced such a backlash to the introduction of software which tracked the time employees spent at their desks that it was scrapped. Also, a German regulator recently handed down a €35 million fine to an employer found to have engaged in unlawful monitoring (albeit this was the “old-fashioned” type of monitoring, with a human taking notes rather than records being created by software).

How can employers strike the right balance in monitoring staff?

In this period of increased home-working and adapting to the “new normal”, employers are facing the question of how they can monitor employees to an adequate degree without risk of incurring eye-watering fines. Whereas it was previously possible to gain an understanding of what employees were up to in a shared physical space, employers can no longer rely on “learning by osmosis” without engaging the help of monitoring software.

Any such decision requires consideration of employees’ right to privacy in their workplace. Under Article 8 of the European Convention on Human Rights, public authorities must guarantee workers some degree of privacy in the workplace, including in their correspondence.

Whether an employer has breached this right to privacy will normally depend on whether 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.

Yet this begs the question of what specific limits apply to employee monitoring in the UK? Putting the impact on employee relations aside (although important - see below), to what extent is it legitimate to monitor employees remotely? Some instructive answers to these questions 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 abide by the data “holy trinity” 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 adverse impact on data subjects, and any mitigation.

• Inform employees of the monitoring that is being undertaken 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 calculated or 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. Employers should therefore be wary of using unfair monitoring practices which could be interpreted as destroying trust and confidence. We’re 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

Well before reaching the stage where employees might consider constructive dismissal, employers should 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 has perhaps unsurprisingly shown that monitoring and surveillance can negatively impact trust in management, specifically for employees in manual, highly standardised roles. Employers need to consider the ways in which they are perceived by third parties when considering the types of monitoring that they wish to put in place and be aware that both internal and external observers may pass judgment on perceived unfairness.

Considering employee views at an early stage is therefore crucial for maintaining trust and minimising risk of cultural damage. Careless implementation of monitoring technology may engender distrust, leading employees to experience stress, underperform, and ultimately leave – rapidly eroding a company culture that might have taken years to build. As discussed in our online discussion series, Business transformation in the post-pandemic world, such outcomes may be avoided by organisations deciding to allow employees to be part of the process of implementing monitoring technology. This can create trust surrounding the way in which the technology will be used and allow employees to appreciate the potential benefits.

With increasing numbers of staff requesting flexible working, monitoring measures are likely to become more relevant and prevalent in the future. Employers should tread carefully to respect the balance between home and work, thereby averting unwanted legal, reputational and relational ramifications. After all, we may be working from home, but we don’t live at work.