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25 November 2020
With reports of businesses increasingly taking steps to monitor staff who are working remotely due to the COVID-19 pandemic, this article discusses the legal considerations and how employers can strike an appropriate and fair balance between work and home life.
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, but can employers actively monitor those who are working remotely and, if so, how intrusive can that monitoring be?
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:
Some news reports might lead readers to believe that employees will need to start living with a more Orwellian approach to employee monitoring. For example, one employer in the United Kingdom 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 different types of business.
However, the European approach to employee monitoring is less forgiving than that of the United States. For example, in early 2020 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.
In this period of increased homeworking and adapting to the new normal, employers are facing the question of how they can monitor employees to an adequate degree without the risk of incurring eye-watering fines. Previously, it was possible to gain an understanding of what employees were up to in a shared physical space; however, 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 employers have breached this right to privacy will normally depend on whether employees 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 United Kingdom? Putting the impact on employee relations aside (although this is 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:
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. Employers' breach of this duty may allow employees to claim unfair constructive dismissal, with financial and reputational consequences. Therefore, employers should be wary of using unfair monitoring practices which could be interpreted as destroying trust and confidence. While there are currently no case law examples in the context of remote working and monitoring, they could arise in future.
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 that 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 affect trust in management, specifically for employees in manual, highly standardised roles. Employers must consider the ways in which they are perceived by third parties when considering the types of monitoring that they wish to establish and be aware that both internal and external observers may pass judgement on perceived unfairness.
Therefore, considering employee views at an early stage is crucial for maintaining trust and minimising the 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. To avoid such outcomes, organisations could allow employees to be part of the process of implementing monitoring technology.(1) 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 will likely become more relevant and prevalent in the future (for further details please see "Flexible working post-COVID-19 – sea change or nothing new?"). Employers should tread carefully to respect the balance between home and work, thereby averting unwanted legal, reputational and relational ramifications. After all, employees may be working from home, but they do not live at work.
For further information on this topic please contact Lee Nair or Sean Illing at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org or email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) For further information please see "Business transformation in the post-pandemic world".
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