Gillian Maclellan

As employers across the UK now look at another sustained period of their workforce working from home, we are hearing tales of some using tracking technology to keep tabs on their employees.

For example, it was recently reported that PwC had developed facial recognition software aimed at certain employees, including traders who operate in a highly regulated environment. This type of software tracks whether an employee is online or has taken a long break away from their computer. Alternative methods involve tracking key strokes.

Can employers legitimately take these steps? Monitoring gives rise to significant data protection considerations. Under data protection legislation, monitoring is likely to be considered “high risk processing”. As such, the first thing employers need to do is carry out a data privacy impact assessment. Employers will need to be satisfied that the monitoring is “necessary and proportionate”. An employer needs to consider whether there is an alternative and less intrusive way of achieving the same outcome.

Importantly the employer must be transparent with its workforce about what it’s doing. Secret monitoring or covert surveillance in the workplace is rare, and save in cases where there is a suspicion of criminal activity, is unlikely to be justified; it certainly won’t be justified as part of routine monitoring of home-working.

Workplace monitoring also triggers a number of additional legal obligations for employers. Particularly for those in the public sector, human rights implications under Article 8 of the ECHR come into play, most notably the right to privacy. In the UK, an employee is entitled to have a reasonable expectation of privacy and employers need to carefully balance the competing rights under the ECHR.

Employers also need to think about the potential impact of monitoring. A US study showed that employees who knew they were being monitored experienced increased stress and anxiety. Employers should also consider the impact monitoring will have on trust at a time when employees are already facing significant uncertainty and additional pressures. If, for example, an employer is monitoring to ensure employees are “doing what they should be doing when they should be doing it”, is the better approach not to set targets and if people don’t meet those targets to deal with those individual situations, rather than to monitor all and create a general impression of distrust? Employers must be careful not to use a sledgehammer to crack a nut.

Employers who decide to embark on monitoring must consider carefully how they communicate these measures to employees. In 2019, Google employees accused their employer of creating a “spying tool” and took to the media to complain.

Something else for employers to think about in this space; many employers are considering just now this concept of the “new norm” – the idea that this pandemic will impact forever how we work. At the heart of this new norm is a need to change our mindsets in relation to home-working; to stop seeing it as the easy option, or as I heard it recently described: “the skiver’s charter”! How does monitoring your workforce as they work from home play into this narrative?

Monitoring is not a straightforward issue. There will be cases where it is appropriate, where, for example, it is necessary for security reasons or the data will be used to support employee wellbeing, such as picking up where excessive hours are being worked. However, my strong message for employers is not to rush in before they have had a long hard think about whether it is genuinely necessary in their environment, taking into account not only legal considerations but the wider impact on morale and trust.

Gillian Maclellan is a partner at international law firm CMS