Legal Q&A ‘Big Brother’ software

Given the recent press speculation about the ‘Spyware’ software favoured by Microsoft in the US, what are the implications of ‘Big Brother’ technology in the workplace? And how far can HR practitioners go when it comes to monitoring employees?

Q If monitoring already takes place, why is Microsoft’s software perceived as overly intrusive?

A The Microsoft level of monitoring smacks of ‘Big Brother’, relying as it does on machines to collect and assess data relating to the quality and quantity of work produced, as well as checking an employee’s physical wellbeing by way of their heart rate, facial expressions and blood pressure.

This remote supervision to monitor employees’ computer use and wellbeing is known as ‘activity-centric monitoring’. This is constant monitoring of, for example, the number of key strokes, productivity and competence, which is analysed and compared by the computer to a ‘base line’ (or average) performance related to the task in hand versus the user’s age, health and weight.

Q Who will use systematic monitoring in the UK?

A Systematic monitoring is suitable for employers with large teams of employees who perform similar work, such as call centre staff. Such monitoring will enable employers to identify those who require training, reassignment, performance management and, potentially, dismissal as a consequence of poor performance. Of course, it will also identify high performers and facilitate genuine reward.

Q Can employers monitor employees without any warning?

A Monitoring must be consistent with the existing statutory framework. It has long been acceptable in the workplace provided that employees are aware of the nature, extent and reasons behind it. Employers should be able to justify their actions by a business need that outweighs their employees’ right to privacy in the workplace.

Employers must comply with the Data Protection Act 1998 (DPA) when processing personal data relating to employees. While the DPA does not prevent monitoring, it must be consistent with the Act and its codes of practice.

In addition to the DPA, the monitoring of any type of communication amounts to an ‘interception’ so the Regulation of Investigatory Powers Act 2000 (RIPA) and its related regulations also apply.

Q Do employees have rights in relation to workplace monitoring?

A Yes. The DPA provides that employees should be told about workplace monitoring and must freely consent to it. The latter is also a requirement of RIPA.

However, if monitoring can be justified as a benefit to the employer that outweighs any disadvantage to staff, or if the intercepted communication relates to the employer’s business, the issue of consent becomes irrelevant.

Q What are the legal requirements for monitoring?

A Technological developments have led to increased workplace surveillance, particularly in relation to telephone, e-mail and internet use. It is therefore advisable to include a consent clause in the employment contract that permits employers to process personal data.

It is also useful to make employee compliance with the IT policy a term of the employment contract and to ask staff to sign the policy itself.

Q What should the IT policy include?

A All employers should have an IT policy, which should specifically warn employees that their use of business equipment and systems will be monitored and the reasons why. The policy can also be used to identify standards of conduct, such as acceptable e-mail and internet use, and to set out the disciplinary consequences of misuse of the employer’s systems.

However, employers must be proactive in ensuring that employees are aware of the policy by specifically drawing it to their attention and by periodically reminding them that their use of workplace systems will be monitored.

In any event, it is employees who will decide whether the Microsoft system (or similar) proves successful – they will decide with their feet if this degree of intrusiveness is justified. Asking new employees to consent to micro-monitoring might not be as hard as it sounds.

Big Brother is already watching – how much do you want the job?

Comments are closed.