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Monitoring staff – What employers need to know!

Employee activity can be an important measure of performance but getting the process wrong can be costly. Here, Berwins’ Mike Patterson and Elle Margerison explore the considerations businesses need to take before implementing a monitoring system.

The situation facing employers 

Restrictions arising from the coronavirus pandemic saw many businesses rethink the way they operated. Now, as those restrictions are eased, many of our clients are looking to build on what has been learned and continue with hybrid and agile working arrangements. 

As a result of a general increase in home-working, employers are facing the question of how they monitor employees to an adequate degree without risking either breaching data protection legislation or a backlash from disgruntled staff. 

Here, we look at how employers can monitor staff, the legal issues involved and how to strike the right balance to minimise risk of it going wrong. 

How can businesses monitor staff? 

Monitoring is a recognised component of the employment relationship. Most employers will make some checks on the quantity and quality of work produced by their staff, who will generally expect this. 

Developments in technology have resulted in an increase in available programs and software which employers can use to electronically monitor activity. 

This could include software which can: 

  • Record the applications and websites which have been used, down to the level of keyboard or mouse activity or recipient and subject lines of individual emails. 
  • Monitor telephone usage, with calls being listened to or recorded where needed, all to assess employee performance and aid quality control. 
  • Deploy CCTV and video surveillance in workplaces and surrounding areas to monitor staff and their activities more generally.  

What are the legal and data protection issues around monitoring? 

There are no data privacy laws in the UK which specifically govern employee monitoring. Employers are not expressly permitted to monitor, but neither are they prohibited from doing so. 

However, there are a number of considerations. Particularly, employers must bear in mind individuals’ right to respect for a private and family life (Article 8 of the European Convention on Human Rights as incorporated into UK law by the Human Rights Act 1998). 

Similarly, although there are no specific data privacy laws governing the monitoring of employees or workers, electronic forms of workplace surveillance do involve the processing of personal data, so are regulated by the UK GDPR and the Data Protection Act 2018. 

Where there’s a high level of staff monitoring, there are increased risks of employers breaching data protection legislation, and their obligations as data controllers. For example, if software has been implemented without any risk assessment and particularly without the knowledge of the staff, its use is likely to be in breach of the UK GDPR. This must be carefully considered before any processes are put in place. 

What are the business risks of getting monitoring wrong? 

At the heart of the employment contract is the implied duty of trust and confidence, which may be broken by monitoring employees in breach of their privacy and without their knowledge. 

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 open the door to a claim unfair constructive dismissal, with financial and reputational consequences. 

Employees who believe they have been unfairly targeted by their employer's monitoring activities could also claim they have been unlawfully discriminated against. If an employer's monitoring activities are aimed at uncovering illegal or unsafe practices in the workplace, the employer might cite its duty to provide a safe system of work for its staff and to take reasonable care of its employees' health and safety as an objective justification. 

Another consideration when it comes to monitoring is the impact on health and wellbeing. Employers have a duty to safeguard the health and safety of employees in the workplace, which includes mental health and ensuring an environment which is not unsafe in terms of stress levels. 

Given the trust issues which electronic monitoring can create and the pressure employees may feel under, issues could arise with stress and anxiety. Employers proposing to introduce monitoring software should think carefully about whether it is necessary or justified, and where it is introduced, ensure it is done so transparently and in accordance with data protection legislation. 

Building mutual trust in the workplace and showing that employees are trusted to get on with their work and deliver as intended is key and likely to be better for employee relationships. 

How to strike the balance in monitoring staff? 

The Information Commissioner’s Office (ICO) has published its employment practices code (LINK) which sets out good guidance when employers are considering a monitoring regime. Although this code has not been updated to reflect current data protection legislation, the guidance remains relevant and is due to be updated later this year. 

Put simply, it is vital for employers to comply with the data “holy trinity” of transparency, proportionality and legality

To comply with these and to help strike the balance, employers should; 

  • Inform staff of the monitoring that is being undertaken and what this means for their data, such as what information will be processed and why. This will require updating of privacy notices or issuing a new privacy notice specific to this issue. If data from monitoring could be used to discipline an employee, they must have been informed of this, otherwise this could have implications for the fairness of any disciplinary process.
  • Complete an impact assessment setting out the purposes of the monitoring, and justification for it, along with any risks which arise from it and how to mitigate these.
  • Consider alternatives, or different methods of monitoring.  For example, look at whether new methods of supervision, effective training and/or clear communication from managers can be used to deliver the same results, instead of electronic monitoring.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).

With the rapid increase in hybrid working and requests for flexible working set to continue, monitoring measures are likely to become more relevant and prevalent.  So, employers need to tread carefully to respect the balance between home and work, to avoid unwanted legal, reputational, and relational ramifications.  

For further advice and guidance on the monitoring of your staff, contact Head of Employment, Mike Patterson, on 07860 505426 or email Mike at MikePatterson@Berwins.co.uk. Alternatively, you can get in touch with Commercial Solicitor, Elle Margerison, on 01423 722563, or email Elle at ElleMargerison@Berwins.co.uk.

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