Continuing advances in information technology have opened up an increasing amount of opportunities for a more flexible way of working across many industries. High speed broadband, cloud sharing and effective telecommunication are only a handful of ways employees can work more collaboratively and productively, especially outside of the office. When combined with employers placing more of a focus on output rather than being prescriptive about the method for achieving those results, new ways of working can be opened up. This change can have a positive impact on all involved: employees are able to avoid or reduce tiring and time consuming commutes, while employers are able to reduce overheads where less office space and physical infrastructure is required. Not to mention the benefit of a better rested and motivated workforce. These changes have led to many employers revising the concept of work from being just simply a location, into an activity.

While technology can be utilised to empower employees and enhance their ability to work in a more agile fashion, other instances of emerging technology are providing employers with the opportunity to increase the monitoring of the employees and their productivity. Enter Big Brother.

A small vending machine company in Wisconsin hit the headlines last year when 72 of their total 90 staff members volunteered to have chips the size of rice grains implanted under their skin. These could be used to open doors, log onto systems and use the vending machines. Similar technology can also be used for other benign purposes, such as implant technology being used to monitor the location of vulnerable individuals such as dementia patients. However, this tracking and surveillance technology can also be re-purposed to closely monitor employees and analyse their productivity levels in a more oppressive manner.

Many employees, especially those working within the gig economy, are now more connected than ever. Employers are beginning to require hand-held devices as an essential aspect of everyday working. Whether it’s needing to download a bespoke app on a personal device, or a mobile phone being handed to the employee on day one of the job, an employer’s level of accessibility to their employees has never been greater. The variety of devices are used to deliver assigned tasks and record completed work. While this can improve efficiency, both speeding up and increasing the accuracy of work undertaken, the devices also provide an employer with the ability to constantly track their employees’ conduct and constantly scrutinise their employees’ productivity. Far from liberating employees to work in a more flexible and autonomous fashion, such technology can create an oppressive environment where employees can think twice about going to the loo for the fear of their absence from the shop floor being recorded as idle time.

Whereas employee monitoring in the past may have been limited to the reviewing of email accounts or websites visited, further advances such as wearable technology provide enhanced monitoring opportunities, up to and including bio-tracking, where an employer can keep tabs on their employee’s vital signs. Again, this may be beneficial where it potentially enables employers to keep track of an employee’s well-being and pick up on fatigue, something especially crucial for those operating in manufacturing plants or machinery. However, software products that take regular screenshots of employees devices, photos of desks using webcams, or monitoring an employee’s keystrokes, are far more difficult to position as being what one would deem beneficial to the employees themselves.

Forward-thinking employers will always look to find ways to incorporate and utilise technological advances. The usage of this technology should no longer come as a surprise. However, the means for undertaking the implementation of new technology in the workplace is something that needs to begin to come under question. It’s becoming more apparent that while new technology will be used as a means to empower and liberate employees, and it can also be used to keep us under surveillance.

In the UK there is no one piece of legislation which deals with the monitoring of employees and it is a practice which is neither expressly permitted or prohibited. Employers have in the past sought to gain the consent through contractual provisions. However with the introduction of GDPR employee consent given via a clause in the employment contract is unlikely to have been freely given. Similarly an employer may not be able to argue that an employee was properly informed about the employer's monitoring activities when they were offered their contract.

Instead employers will need to identity a lawful basis for monitoring and confirm that lawful basis together with information about how the employee may be monitored via a privacy notice. In addition, where the one of the purposes of monitoring is to ensure compliance with electronic communications policies, employers should consider an IT and electronic communications policy setting out the type of monitoring that may be conducted and why.