What's the issue?

The UK's data protection regulator, the ICO, issued a call for views from stakeholders in August 2021, to help it develop updated guidance on employment practices and data protection. The ICO has previously published detailed employment practices guidance but pointed to two main drivers for the proposed revisions: the need for a more user-friendly, topic-specific resource and, crucially, the change in working practices since the first raft of guidance.

As we all know, the COVID-19 pandemic brought radical changes to workplaces and working practices. For some, things have gone back more or less to normal. For others, the era of hybrid working has arrived, following long periods of working exclusively from home at the height of the pandemic. The ICO has recognised the challenges these changes have brought to employers and is starting to publish topic-specific guidance on employment practices and data protection.

What's the development?

In October 2022, the ICO published draft guidance for consultation on two topics:

Monitoring at work

This draft guidance explains the legal obligations of employers already carrying out or considering carrying out monitoring of workers. It goes on to look at different types of monitoring, both in terms of technology, and purpose, and at the rights of workers who are being monitored.

Workers' health information

This draft guidance looks at lawful processing of work health information. This is not just in relation to data collected during the pandemic, although health monitoring and the sharing of worker health information, both highly topical issues, are covered. The guidance also looks at sickness and injury records more generally, medical examinations and testing, and genetic testing.

What does this mean for you?

The guidance will apply to the public and private sectors (subject to limited exceptions for law enforcement), covering organisations which have employees, workers, contractors or volunteers. Much of it is not new in substance, but it is more targeted to particular issues employers currently face or which have come into recent prominence. The ICO is also intending to produce additional practical tools like checklists to sit alongside the guidance.

The consultations on the drafts are open until 11 January 2023 (monitoring) and 26 January 2023 (workers' health information) for those wishing to input.