With civil servants under pressure to be present at the office, there have been reports that some employees’ computer use has been monitored. But can employers legally monitor remote workers to see what they are doing and when? Rachel Tozer looks at the issues involved.
Earlier this month, reports emerged that the Cabinet Office was monitoring employees’ computer and wi-fi logins to see whether they were in the office.
A privacy notice revealed that managers had been looking at data around IP addresses, office locations and emails to see who was at their office desk and who was at home – ministers such as Jacob Rees-Mogg have famously decried home working in recent weeks, claiming staff are using flexible working arrangements to “skive off”.
Whatever an employer’s motivations for tracking someone’s working location, what are the legal implications of monitoring staff activity in this way? Firstly, employers must take into account the data and employment laws that will apply.
Data considerations
Since Brexit, the General Data Protection Regulation was retained in English law as UK-GDPR, supplemented by the Data Protection Act 2018. Tracking employees based in the UK, whether that be through wi-fi and computer logins or something more intrusive must be handled carefully to ensure it complies with UK law.
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Standard monitoring practices are unlikely to be controversial and will generally not raise issues amongst employees, such as the automated monitoring of emails to check for viruses.
However, more intrusive forms of monitoring require careful consideration and an employer’s rationale in using these processes must be justified before they are introduced.
This could range from analysing the keyboard activities of employees during working hours to demanding employees keep their laptop cameras on to show they are constantly present at their desk.
The Information Commissioner’s Office (ICO) requires employers to consider whether the proposed monitoring is necessary for the purpose of the business or if there are alternative, less-intrusive ways to achieve this objective.
Covert monitoring for performance management is unlikely to be considered as an acceptable practice from a data perspective, for example.
An employee could challenge the use of covert monitoring in a dismissal scenario based on the fact the evidence was unlawfully obtained. If the employer decided to proceed with the dismissal, the employee could claim unfair dismissal, if they have served the company for longer than two years.
Reasons for processing data
From a data perspective, an employer must have a lawful basis on which it intends to process personal data.
Standard personal data can be processed by an employer for several reasons such as being necessary to give effect to the contract of employment, complying with a legal obligation or for the legitimate interests of the employer’s business so long as those interests are not outweighed by the individual’s rights and freedoms.
However, monitoring that uses biometric data for identification purposes (such as fingerprints, the face, or elements of the face) is “special category” personal data which is more highly protected and requires an employer to have a special category lawful basis.
Several special category lawful bases require a public interest element such as the protection of children (in a school) and vulnerable adults (in a care home) or public safety (such as at an airport). Private interests such as protecting customers’ buildings, information, or equipment will not satisfy this public interest criteria requirement.
Employers will need to undertake a data privacy impact assessment before they introduce monitoring particularly if it will use biometric data. They will also need to have an appropriate policy document in place.
Legal risks
Monitoring remote workers could also give rise to a range of employment law issues for an employer.
Employers should consider the risks involved in treating remote workers differently to office-based workers as this could give rise to indirect discrimination claims, or potential claims for failure to make reasonable adjustments.
This issue could arise if, for example, home working has been implemented to help an employee with a disability.
If the employer is intent on bringing employees back to the office, they should consider their employees’ home working environment and be mindful of issues surrounding child or elderly care, mainly impacting female employees.
If an employee, who has worked at a company for longer than two years and refuses to work under conditions where they are monitored, employers must consider how to manage this issue.
For example, if an employer disciplines such an employee for misconduct (failure to follow a management instruction) or performance (failure to perform their duties), the onus will be on the employer to prove that dismissal on these grounds was within the range of reasonable responses.
An employer must ensure that an employee’s particular concern about being monitored is addressed. Employers would be well advised to consult with staff before the proposed monitoring is introduced, as this will provide an opportunity to address any concerns employees may have at an early stage and potentially avoid such disciplinary scenarios.
Provide training
Employers should provide training to staff on all issues around data access and ensure it is not shared with anyone who is not authorised to view it. This will reassure employees that their data is protected and potentially reduce complaints around monitoring and data processes.
If proposed monitoring involves the use of new technology, employers must consider if any staff will have difficulties accessing or using the technology due to a disability and if so, what reasonable adjustments the employer can make to assist the employee.
If an employer uses an app that can only run on certain devices such as a smartphone, they could face an indirect age discrimination claim, if, a greater proportion of the workforce who do not own a smartphone are older than those who do.
Remote working has allowed employees to have greater flexibility, independence, and mobility.
Before making the decision to monitor remote workers an employer should question if knowing the length of time an employee spends in front of their laptop is a good measure of productivity or if reviewing an employee’s output against objectives provides a better analysis of their work rate.
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Where an employer thinks that monitoring will help ease any concerns it has with a remote workforce, it must be aware of all of the data and employment law implications to ensure it doesn’t breach its legal obligations.
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