Paul McGowan, Managing Partner, at employment law specialists Collingwood Legal looks at the impact of steps some employers have been taking to monitor employees working from home during the Covid pandemic.
As employees have had to work from home during the coronavirus pandemic, some employers have started to remotely monitor their employees’ activity to ensure that their productivity is not suffering in their new work settings. Whilst monitoring employees’ activity is nothing new and many employers have policies on monitoring employees’ work devices, including checking employees’ emails, the new ways in which employees may be monitored are quite novel.
New methods of employee surveillance can vary from checking whether they have been ‘active’ on programs such as Microsoft Teams or setting up regular video calls and requiring employees to display their video to ensure employees remain at their desks to, in the most extreme cases, using software which tracks employees’ activity on their computers, which can track every keystroke and mouse movement made.
From a legal perspective, it may be possible for an employer do this. However, there are some points which an employer should bear in mind if they want to implement such measures, which have been highlighted by previous case law from the European Court of Human Rights. An employer should make it absolutely clear in advance to employees they intend to implement methods of monitoring employees, along with the nature and extent of the monitoring and of the degree of intrusion it may have on the employee’s private life. For example, employees sometimes use work computers for personal use, even where there is a policy that prohibits this, however case law has indicated a policy of this type still does not totally limit an employee’s right to privacy.
Additionally, if the results of this surveillance will be used in any performance management or disciplinary procedure, this should also be clearly communicated to employees.
For data protection purposes, it is important that employees are informed of what information may be collected and what the employer’s purpose is for collecting this information. This should always be an important consideration for employers, given the need for there to be lawful basis for processing under the GDPR and the potential sanctions which may be imposed by the Information Commissioner’s Office for a failure to comply with data protection obligations.
A disproportionate use of this approach, which might include an overuse of monitoring or singling out individuals, or monitoring covertly could be considered a breach of the implied duty of mutual trust and confidence between an employer and employee and could, in a worst case scenario, lead to potential claims for constructive unfair dismissal from employees who may be driven to resign in response to overt, or covert, monitoring.
Leaving aside the legal position, I think the real question to ask an employer in a situation like this is, will the potential benefit to the employer of surveillance outweigh the damage it could potentially do to the goodwill and relationship of trust with their employees? I think any employer should carefully consider whether there is a genuine need to monitor employees or whether this is something that an employer feels as if they should do because they don’t entirely trust their employees when working from home. Practically, it is more likely to be reasonable for an employer to monitor its employees in this way where, for example, there are tangible performance or productivity concerns which need to be addressed. However, I am of the view that an employer must ask itself whether it cannot first use other performance management techniques like Key Performance Indicators to measure employees’ output before resorting to remote surveillance.
At the root of the issue regarding employee monitoring is the question of trust in the employment relationship. As organisations continue to adapt to new ways of working, which may be a mixture of office and home working, some will embrace it with open arms whilst others may be less willing to trust employees to get on with work.
If you need any advice or assistance on managing employees who are working from home or any other employment law or HR advice, contact Paul.McGowan@collingwoodlegal.com or on 0191 282 2882.
