Nighat Sahi

Published 10 June 2021

Employee Monitoring and Data Protection

Many of you may have seen a report in The Guardian back in March this year (2021), which revealed that Teleperformance (an international organisation which employs 380,000 people worldwide), plans to use specialist webcams to watch and monitor remote workers. The equipment and Artificial Intelligence to be used would be able to detect periods of keyboard inactivity if someone else is in the worker’s workspace, employees missing from their desk and unauthorised mobile phone usage.

Although Teleperformance said the remote scans would not be used in the UK, it raises an important point about employee monitoring as many UK workers continue to work from home. 

The legal position

Although employee monitoring is permissible in appropriate circumstances, it is often highly contentious as well as complex. Employers can monitor employees at work in a number of ways, including:

  • Listening to/recording phone conversations
  • Email and internet usage
  • CCTV surveillance
  • Checking phone logs or recording of phone calls
  • Checking logs of websites visited
  • Videoing outside the workplace

Employers who intend to monitor their employees must first and foremost ensure they comply with data protection legislation. This is currently the UK GDPR (the EU GDPR retained in UK law under the European Union (Withdrawal) Act 2018), the Data Protection Act 2018 and also the Human Rights Act 1988.

Monitoring in practice

As an employer thinking about introducing employee monitoring, you will need to ensure that it is fair and that it is used for specific work purposes. Furthermore, you will need to:

  • Be clear about why you need to introduce staff monitoring and its benefits,
  • Carry out an impact assessment to identify any negative effects the monitoring may have on employees,
  • Consider whether there are any less intrusive or less excessive alternatives taking into account the reasonable privacy expectations of employees,
  • Work out whether the monitoring is justified, taking into account all of the above, and
  • Avoid monitoring purely personal and non-professional data where it is immediately clear that it’s personal.

Employers should also let employees know that they will be monitored and why it is necessary. This communication should be clear and transparent, explaining why it is necessary, the legitimate interest being pursued and the type and extent of the monitoring.

Employer policy

Employers should have a clear and comprehensive policy in respect of monitoring and data protection which appears in contracts of employment or employee handbooks, and forms part of their onboarding process.

An evolving area

With many workers either moving permanently to home working or continuing to work from home for the time being, this is another area that is going to become increasingly important and where we are likely to see future litigation. It is of note that Teleperformance stated that the use of monitoring by them was a response to “the overwhelming concerns of isolation, lack of team engagement and support, not seeing anyone from one day to the next, raised by those who are at home”. The reality is of course that such an approach will create a working atmosphere of fear and mistrust and erode employee / employer relations.

Employers who wish to monitor their employees will have to walk a fine line, balancing their legitimate interests against compliance with the regulations, employee rights to data protection and privacy and what is likely to be considered reasonable. Clear and careful communication and considered planning will be essential.

If you are considering any sort of employee monitoring, we would recommend you take legal advice first.

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