Employment Solicitor Chris Dobbs outlines some key considerations for employers to try and limit the risk of hybrid working disputes and claims
Chris Dobbs, solicitor in our specialist employment & HR team, offers a comprehensive guide to remote monitoring of employees working from home.
How do you monitor employees working from home?
With recent surveys hinting that employees are more productive when working from home, it may not be necessary in many businesses to monitor employees remotely. In some circumstances, however, it may be.
Monitoring employees can be good business practice; it allows employers to keep an eye on productivity, performance and to ensure that its IT systems are being used appropriately and in accordance with company IT policies.
Data privacy law in the UK does not specifically address employee monitoring as it does in some other countries, but data protection is stricter here than in, say, the US. There are several pieces of legislation and case law which deal with what is and is not allowed when monitoring employees.
Working from home: Is there a right to privacy?
The right to ‘respect for […] private and family life’ comes from the European Convention on Human Rights and was adopted into UK law by the Human Rights Act.
The HRA holds a special place in UK law because it is treated as a yardstick against which interpretation of other laws should be measured. Where a convention right is raised, courts and tribunals are obliged to consider the right in relation to their decision.
All of the points below should therefore be read with this in mind and the basic position is that there is an enforceable right to a reasonable degree of privacy.
Is it legal for an employer to monitor employees working from home?
Legal tracking productivity WFH - what is the relevant law?
There are various pieces of legislation dealing with the ability to monitor employees and employee rights in relation to being monitored:
- Article 8 of the European Convention on Human Rights. This is contained in the Human Rights Act and so remains British law for now even after Brexit.
- GDPR and the Data Protection Act
- Telecommunications Regulations 2000
- The Regulation of Investigatory Powers Act (RIPA) 2000 and Investigatory Powers Act 2016
- The implied duty of trust and confidence inferred into employment contracts
- The application of ‘fairness’ as applied when considering rights under the Employment Rights Act 1996
- The Equality Act 2010
What is working from home monitoring?
What can my employer monitor when I’m working from home?
The most common forms of monitoring, especially as employees are increasingly working from home, is the use of surveillance software to monitor online productivity and internet use.
Can your employer monitor your Internet use at home?
Emails maybe checked by number, content or destination and employers may log website access.
Can an employer record calls when I’m working from home?
Phone calls have been monitored for many years, commonly in sales work where managers may be able to listen in on the conversation or monitor duration.
As more people work from home, one of the challenges employers face is how to ensure productivity remains at in-work levels. Short of regular supervision checks, one solution is to install monitoring software on computers.
Can businesses monitor employees who work remotely without consent?
The Telecommunications Regulations 2000 do allow employers to monitor employees without the employee having given consent but only in very specific circumstances:
- Employer believes the employee is doing something they should not be
- Employer believes the employee may be involved in criminal activity
- If the employer is acting in the interest of national security
- To maintain standards across telecommunications equipment, such as virus scanning
- For quality control, business continuity or regulatory compliance
- If the business is required to monitor business transactions
This may seem very broad, but the Telecommunications Regulations are actually intended to restrict monitoring and surveillance activity. They are also subject to the DPA and GDPR.
Working from home and GDPR
Under both the DPA and GDPR, many monitoring activities will amount to data processing and monitoring may give access to personal data or even ‘special category data’ such as medical information. Even a permissible act under the Telecommunications Regulations may amount to a regulated activity.
Even where monitoring is permissible under data protection law, employees may still be able to claim that it amounts to a breach of contract or that it was imposed in a discriminatory way.
What employment claims might arise from remote monitoring?
Remote monitoring and consent
Our advice is that, in most cases, any surveillance of employees should be done with their knowledge and consent. The DPA’s Code of Practice states that employers should have an electronic communications policy which is communicated to employees.
Where that is not done, claims against the employer are much more likely to be successful even where the monitoring was reasonable and otherwise lawful.
Dismissals and remote working
Any dismissal which is carried out following surveillance of which the employee was not aware and has not consented to may be deemed unfair. This includes conduct and capability dismissals.
If an employee discovers that they are being monitored without having given their consent, the employer could be facing a constructive dismissal claim. The use of surveillance, particularly if it is personal or invasive, could well amount to a breach of the implied term of trust and confidence.
Alongside the tribunal claim which may include compensation, the employee can also make a referral to the Information Commissioner who has the power to fine for breach of data protection law.
Working from home discrimination
Employers should be particularly careful with any targeted monitoring. An employee who is singled out may well argue that it is due to a protected characteristic and it is unlikely that an employer will have any evidence to the contrary if they are only monitoring that one employee.
Remote working monitoring: Advice for employers
Our advice, which we believe to be in line with the Information Commissioner’s guidance and the Data Protection Code of Practice is to have a clear policy in place in respect of telecommunications and monitoring of employees.
If you need any help or advice in drafting policies in relation to working from home, one of our specialist team will be happy to help.
Employment law advice for monitoring remote working
Open monitoring is preferable to covert surveillance and, in fact, covert surveillance should only be used in extreme circumstances and following a full impact statement.
Any monitoring should be carried out fairly and in the least intrusive way possible. Care should be taken where there is any risk of breaching data protection or where employees may be able to argue that they are being specifically targeted especially if it could seem discriminatory in nature.
Before embarking on any form of electronic monitoring of staff, we would strongly recommend you take legal advice on what your specific circumstances.
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If your employer proposes monitoring software, make sure you know exactly what is being monitored and the purpose. Monitoring is invasive and should not take place just for the sake of it; there should be a good business reason.
Make sure that there is a written policy and that it covers the circumstances in which data collected from monitoring can be used.
In particular, make sure you know what is and is not acceptable for you to be doing at work. Your employer should set out whether accessing private emails is acceptable and when, such as during lunch breaks or whether you are allowed to use your wok account to send/receive personal correspondence.
Employment & HR solicitors in Bournemouth, Poole, Christchurch & The New Forest
If you discover you are being monitored without your knowledge, you should seek legal advice.