Working from home – but what if you are being monitored?

Andrea London

Financial institutions have paid a heavy price for excessive employee monitoring but the practice remains popular. Lawyer Andrea London puts it into perspective

With hybrid working now almost the norm, it’s interesting to note that the demand for fully remote roles appears to be in decline, with the percentage of staff who work exclusively from home falling to 22 per cent between February and May in 2022 and fewer than 12 per cent of job adverts offering this mode of working only.

Employers used to be concerned about a lack of productivity from home workers. But even with a hybrid workforce, this has not been substantially impacted; with output per hour, per worker generally at a higher level than pre-pandemic. It’s actually more to do with a lack of trust.

Many, albeit larger, employers are actively seeking to monitor their employees. Some have even established a new role: Chief Remote Officer. One hundred and seven companies did this in the past month alone.

But what is yet to be clarified is whether such individuals are remitted to ensure employees are not “slacking off” or if they are employed to stave off issues around employees “overworking” and becoming disengaged, isolated or simply, that such roles are now needed just to cover the multitude of issues that go with managing a workforce not based in one place.

Despite the news around various large banking and insurance institutions being fined crippling amounts for their excessive, inappropriate (and sometimes covert) nosing into what their employees are up to – employee monitoring software; to track hours worked and work done remains surprisingly popular.

The current legal position regarding the monitoring of employees in the UK is – unfortunately – somewhat grey.  There is no express right for employers to monitor employees and yet no blanket ban on them doing so.   As a result – at the most basic level – there is significant tension between the employee’s right to privacy and an employer’s right to protect its business.

Monitoring, itself, can include a vast array of activities such as, for example, systematic email or message scanning, recording internet usage, analysing system access and usage, checking keyboard activity, remote screen access, recording phone or video calls, video recording, via CCTV or webcam, analysing GPS data from a phone and ‘algorithmic management’ (automatic processing of data, may include “nudges” if quotas missed etc).

employee shocked at being watched

Dismay: is remote monitoring a breach of trust?

What is imperative, from a legal perspective, is that employers can justify the use of any monitoring measures – since a lack of good reason and/or failure to consider alternative and less intrusive methods could ultimately be very costly from both a reputational and financial perspective.

The fundamental legal point to note here regarding monitoring employees is that it can be permitted as long as any adverse impact on the employee is justified by the benefit to the employer.  Any monitoring must meet this essential test.   It is also of paramount importance that any monitoring is done in the correct way.

The European Court of Human Rights has stated that it is inclined to accept considerable monitoring or use of information about employees if this is carried out in pursuit of a legitimate aim which can be justified by the employer. For example, the employer has a right to protect their property from theft and to conduct monitoring in order to maintain the smooth operation of the business.

Further, the extent to which the employer monitors should also be carefully considered. More extreme methods of surveillance such as accessing the employee’s system covertly or accessing an employee personal information will inevitably be subject to a higher standard of justification.

However, with such emphasis now on mental health, particularly amongst the remote-based working demographic, intrusive employee monitoring clearly has to be balanced. Heavy-handed monitoring will quickly and easily undermine carefully worked and implemented employee-wellbeing policies. Employees who consider they are not trusted (to work productively, remotely) will simply move to another employer who does trust and measures “output” – rather than simply looking at whether their employee returned post haste from the school run to log on by 8.30am.

Invoking a blanket monitoring policy, when there may be only a handful of individuals who appear to hold a sluggish work attitude could easily cause wider-ranging difficulties. These can be avoided if, instead, such individuals are properly targeted and managed, so then there is no reason to effectively appear to be penalising the entire workforce.

Employee consent to monitoring is unlikely to be a valid consideration and in any event is not itself a justification for the monitoring. Notification, however, is extremely important. Again, whilst not in itself a justification (so employers will still need to prove that there is a legitimate interest), informing employees that they are being monitored, why and how is a legal pre-requisite.

Covert monitoring is very difficult for an employer to justify and should only be used in highly exceptional circumstances; such as suspicion of a criminal offence or very serious misconduct.

Employers who adopt an over-zealous approach to monitoring their employees, or whose state-of-the-art software is doing more monitoring than the employees have been informed it is – place themselves at a significant risk of not only employment related claims such as breach of trust and confidence (leading to constructive unfair dismissal), but potential human rights claims and ICO enforcement action.

Given the downsides – employers should take care when deciding to implement such processes, as they could end up costing the business rather than assisting it.

Andrea London is a partner at the London law firm Winckworth Sherwood