While working from home and flexible working arrangements have long been available in workplaces, the impact of the COVID-19 pandemic has drastically increased their prevalence in the UK. The Office of National Statistics (“ONS”) reported that in April 2020 46.6% of UK employees did some remote working, in contrast to only 12.3% in 2019. The significant increase in working from home has been mirrored by a booming of “productivity intelligence” software used by employers. In a November 2020 report entitled ‘Technology Managing People’ the TUC found that 15% of workers had seen an increase in employer monitoring since the start of the pandemic. In addition, one in five firms have admitted to implementing or planning to introduce “secret software used to spy on staff”.

Remote employee monitoring software, designed to measure productivity, can track data including the number of mouse clicks, keystrokes, emails, applications used and time spent on particular sites. The California based company Prodoscore which monitors emails, work documents, calendar appointments and even transcribes internet-based phone calls to produce an overall productivity score was reported by The Sunday Times to have had a six fold increase in sales since the start of the pandemic. Other providers include Transparent Business, which sends screenshots from employee’s computer screens throughout the day to show their boss what they have been doing, and Time Doctor, which uses the camera on work laptops to take photographs of employees roughly every 10 minutes to determine how often they are at their desks.

There are now many companies reporting that their employees will want to continue to work from home post lockdown, and in many such cases their employers are actively looking to encourage them to do so. Recent examples include Dropbox, Twitter and Fujitsu. It is clear that the impact of the pandemic is likely to be reflected in working practices for many years to come. Employee surveillance is therefore likely to be an important consideration for employers and employees alike.

What is the law in relation to employee monitoring? In the UK, there is no data privacy law which specifically addresses the monitoring of workers by employers; it is neither expressly permitted nor prohibited.

There are some industries for which employee monitoring is necessary not just as a tool of management, but in order to achieve legal or regulatory compliance. Firms that are authorised by the Financial Conduct Authority (“FCA”) must demonstrate that there are processes and safeguards in place to meet regulatory requirements. Regulated firms are required to record telephone and electronic communications of staff engaged in sales and trading. Due to the increase in homeworking since the onset of the pandemic, the FCA has acknowledged that it will not always be possible to record calls. However, the FCA has said it expects firms to inform them if this is the case, and to take steps to mitigate any risk. More recently, in January 2021 the FCA brought up to date its expectations in this respect, bringing to an end the leeway they had originally granted when the pandemic first struck. For further insight and information on this topic, please see our colleague Louise Hodges’ blog, “FCA sets expectations for firms to record communications when working from home”.

However, employers may want to be more cautious where justification for increased surveillance relates to productivity or management information, rather than regulatory compliance. Article 8 of the European Convention on Human Rights, as incorporated into UK law by the Human Rights Act 1998, provides individuals with the right to respect for private and family life. There has not yet been any case law in the European Court of Human Rights on the extent to which employers monitoring employees working from home infringes upon reasonable expectations of privacy. However, given the sharp rise in employees working from home around Europe, it is likely that there will be cases examining this in the near future. Earlier this week Labour’s shadow digital minister Chi Onwurah argued that “Workers should not be digitally monitored without their informed consent. Ministers must ensure people have a right to privacy in their workplace or home — which are increasingly the same.”

There is always a duty of trust and confidence implied into an employee's contract of employment. An employer’s monitoring of their employee working from home may constitute a breach of this implied duty and may entitle the employee to bring a claim for constructive dismissal. Employees may also point to the fact that employers have used surveillance data in disciplinary proceedings to support claims to the Employment Tribunal, for example for unfair dismissal.

Considerations for employers So if employers wish to install employee monitoring tools they will need to tread carefully. International organisations especially will not be able to implement monitoring software across multiple jurisdictions without seeking specialist legal advice.

  1. Employers must be transparent and inform employees of their intention to commence employee monitoring and provide detailed information about the monitoring planned. They should also seek their employees’ consent to provide greater protection.
  2. There must be an appropriate lawful basis for monitoring employees, for example, increasing productivity or to ensure compliance with policies. However, the employer’s interests must be balanced against the employee’s expectations of privacy.
  3. Employers should act in a proportionate and justifiable manner by ensuring that there is no other suitable option available.
  4. Safeguards should be put in place such as password protection and encryption to prevent abuse. It must be ensured that data is used only for the purpose for which it was collected.
  5. Employers must be cautious in limiting monitoring to only certain employees as this may risk claims for discrimination.

It is already clear that the Covid-19 pandemic has indelibly changed the world of work for both employers and employees. It is also clear that employee surveillance is likely to become more of an issue as employers strive to supervise a workforce that is forecast to remain keen to work remotely. If it is considered that the available technology is being abused, damaging trust in the employment relationship, and disproportionately and unjustifiably affecting the rights of employees in these circumstances, we may expect this to be something that will be examined by the Courts and Tribunals, and quite possibly also the Government, if abuse is felt to be sufficiently widespread as to require statutory correction.

This article was first published in Personnel Today on 22 January 2021, click here to view the original.