The surge of employees working from home has resulted in an increase in employers monitoring staff and checking what they are doing. But what are the rights and wrongs of this approach?
Firstly, there is no single privacy law which specifically governs monitoring of employees at work.
Instead, there is a patchwork of legislation covering the right to respect for private and family life under the European Convention of Human Rights, regulation of surveillance and processing of personal data under GDPR and the regime for intercepting electronic communication under the Investigatory Powers Act.
There is then the duty of trust and confidence implied into all employees’ contracts of employment and the obligation to act fairly under the Employment Rights Act when considering disciplining or dismissing staff.
It is a complex balance of rights and obligations and can often lead to disputes and have a negative impact on the trust that all employers and employees must share.
Undertake an Impact Assessment
The first step when considering monitoring your staff is to undertake an impact assessment before monitoring commences. This should set out:
- What monitoring you are considering implementing
- Why it is to be carried out
- Whether the purpose can be achieved without monitoring; and
- Whether there is a less intrusive method of monitoring.
You must then assess the impact of monitoring on the employees and whether the monitoring is justified.
Normally, when working from an office or other workplace, these assessments are reasonably straight forward to undertake, as a clear line can be drawn between a person’s work life and their private life. They use work equipment in the office and if they don’t wish to have their personal affairs monitored, they simply wait until they get home to deal with personal matters.
However, with employees working from home, those lines can become blurred in simple ways such as the employee using the same internet connection or computer for their personal and business affairs.
Employees are often being asked to take calls on their personal mobile phones, but how does the employer differentiate between recording of work calls and personal calls?
These issues can be tricky to overcome – employees can often feel that the employer is invading their home in a way that the same monitoring in the workplace would not.
Inform the Employees
The second step is then to inform the employees that they may be monitored and why. They should be informed of:
- What information will be obtained
- Why it is being obtained
- How the information will be used; and
- Who the information will be disclosed to.
Employers are implementing software to monitor staff far more regularly now, and it is vital that you are open and honest with your staff about what monitoring will be undertaken.
There are regular stories of employers implementing software that will monitor mouse movements to ensure that people are at their computers. On the other hand, there are stories of employees downloading software such as Mouse Move which tricks such software into believing someone is at their desk when they are not.
The implementation of this kind of monitoring and counter-steps is incredible divisive and goes to the very heart of trust and confidence between employer and employee.
It is therefore vital that employers and employees have great dialogue to ensure that everyone knows that is going on and is comfortable with it.
How We Can Help You
If you are an employer looking to implement your staff and would like to talk through your options, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.