November 10, 2022

Monitoring employees remotely

Posted in Employment, Employment

Following on from the recent series we did on hybrid working, another subject springs to mind in this context – that of monitoring employees remotely and data protection. It is axiomatic that it is more difficult to monitor employees remotely and employers have to trust that they will be operating as they would in the office. But employers cannot assume that because the boundary between work and home is now less distinct with hybrid working in play, employees have relinquished their right to privacy. They have not.

Data protection regulations don’t give any valid ground for employees to object to being monitored remotely, but employers should be aware that their permission to monitor employees remotely is not enshrined in law.

An example of how this can go wrong is a large high-street bank which used software to track the activities of individual employees. This resulted in a whistleblowing complaint and an investigation by the Information Commissioner’s Office. While the ICO in the end decided not to take any action it did comment that the bank in question should take steps to ensure it complies with its own data protection policies and understands employees’ privacy fully.

Managers who want to ensure their employees are working when they do not have physical sight of them may find it quite difficult to do this in practice. There is software available which monitors their activity on websites or applications, whether via number of keystrokes, or tracking how long they may spend (how Big Brother is this?). There is even a facility to take snapshots via web cams. However, if employers are going to do this, they must ensure that employees are fully aware.

The European Commission has found that the use of email and desktop monitoring increased considerably during lockdown and the TUC reported earlier this year that there is an increase in the number of employees reporting surveillance and monitoring.

Of course, workers such as long-distance lorry drivers and salespeople have long been used to having their movements tracked so it is nothing new to them (tachographs and the like). It is new, however, to office staff who are now working predominately from home and who may find this a very different experience.

Employers who are monitoring their employees’ movements must ensure above all that they are transparent about what they are doing and how. There is a power imbalance between the individual employee and the employer, and legally employees may be classed as vulnerable Data subjects. To counteract this as much as possible it is imperative that organisations are very clear about their monitoring policy, how it is operated, and the extent of any potentially invasive monitoring. Put it this way – if the employer thinks it is invasive, it probably is. They should also advise employees with young families how best to protect their family’s privacy if they have monitoring equipment on computers in the home environment – make sure young children do not have access to workplace computers, for instance.

The issues of remote monitoring are probably ones which will evolve as hybrid working and more remote systems of working becomes increasingly the norm. Watch this space…

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