A recent European Court of Justice case means that employers will have to take greater steps to track employee time at work. But with organisations already feeling more inclined to monitor staff activity to comply with other regulations such as GDPR, when does concern over employees’ wellbeing turn into spying on them? Jo Faragher reports.
Monitoring the every move of employees may not sound like the strategy of a trusting organisation, but a recent European Court of Justice decision means that, arguably, this practice could be actively encouraged.
In the case of Confederación Sindical de Comisiones Obreras (CCOO) v Deutsche Bank SAE, the ECJ ruled that employers must take more steps to ensure that workers did not exceed the 48-hour maximum working week, and to monitor that they were taking adequate rest breaks.
Monitoring working time
Spain’s largest trade union CCOO, which brought the case, argued that there should be a system to record how long members work each day, including any overtime, to check they do not exceed legal working time.
The ECJ’s decision overturned a previous requirement for employers to simply record overtime, and will be binding in the UK, meaning companies will need to keep more accurate records of working time.
Currently, UK employers only have to keep “adequate” records under the Working Time Regulations and there is no explicit requirement to record data about rest periods.
However, a recent study by Getapp, a software comparison service, found that there is an increasing trend towards monitoring employee behaviour anyway, driven partly by concerns around compliance with legislation such as GDPR.
Getapp found that in 2019, only 10% of business owners thought employee monitoring was an invasion of their privacy, compared with 43% four years ago. Almost four in 10 now think constant monitoring is “necessary to protect their company” compared with only 18% in 2015. Just under a third monitored employees to track productivity.
According to the TUC’s research, however, employees don’t feel as positive about being observed.
Its study last summer revealed that two-thirds of workers felt that workplace surveillance fuelled distrust and could be used in a discriminatory way. Fifty-six percent of workers thought that they might be being monitored at work.
Adam Penman, an employment lawyer at McGuireWoods, argues that under GDPR at least, employers need a specific justification to monitor staff.
“The suggestion that employers should monitor staff movements to check they’re not overworked could be interpreted in many different ways and there is potential for lines to be blurred between responsible welfare monitoring and abuse,” he says. And when it comes to monitoring time worked, how can organisations know which mechanisms are appropriate?
“If the amount of time worked is an indicator of overwork, is monitoring clocking in and out, or the time that emails are sent sufficient?” Penman adds. “Or is video surveillance or tagging really required? Just because an employee doesn’t mind, it doesn’t mean that a line has not been crossed.”
A growing number of organisations argue that keeping tabs on employees is, conversely, good for productivity and wellbeing.
With the UK’s labour productivity lagging near the bottom of the G7 countries, tracking vast numbers of data points on workers’ activity and gaining insights on where it could be improved can only be useful, they claim.
“This isn’t ‘surveillance’ because employees are not being watched on any sort of video system,” says Saryu Nayyar, CEO of Gurucu, a security and behaviour analytics company. “Rather, digital logs of employee activities are fed into a data lake where machine learning and analytics are used to turn employee activity logs into meaningful information.”
“Specific machine learning models can be utilised to track employee work hours and alerts can be raised when employees are close to reaching peak work hours so management can end their work day.”
Mathias Mikkelsen, CEO of Memory, which has developed an AI time-tracking tool called Timely, believes that the more transparency employees and managers have over how and when they are working, the smarter they can work.
This isn’t ‘surveillance’ because employees are not being watched on any sort of video system,” – Saryu Nayyar, Gurucu
Timely is installed on an individual’s computer and builds a timeline of their day-to-day activities. It then analyses this data and separates it into categories – so a web designer working for multiple clients might have this broken down for them, plus a track of any meetings they attended or client calls.
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“The accuracy gets better if you log everything; it begins to understand how you work,” he says. Only the employee sees personal data such as location or websites visited – what they submit to their manager (or client – it’s popular with self-employed contractors) is up to them.
One user was able to show her manager how much time she spent in meetings or on project management rather than on her core role. “We’re not here to build a big brother tool,” insists Mikkelsen. “We’re here to eliminate the cognitive load of tracking your time. Most people hate tracking their time but it’s the most common way of valuing work.”
Nicole Bello, vice president of small business and channel sales for EMEA at software company Kronos, believes the intentions of the ECJ in its ruling were “similar in many ways to the UK government’s Good Work Plan” (Matthew Taylor’s extensive review of work practices published at the end of last year).
The ECJ’s intention is to prevent workers being exploited by bosses insisting on ever-longer shifts or getting around working time regulations through opt-outs or loopholes, she suggests.
“Systems that track working time and attendance of hourly workers have been in common use in the UK for decades and have been good not just for employees – as they ensure accurate and timely pay – but also for employers who can automate payroll and reduce admin requirements,” she says. “But with this latest ruling including salaried employees, its implications could stretch much more widely.”
Even before the ECJ’s recent decision, the number of tracking tools available to organisations and individuals had begun to explode.
Maybe there should be a change in focus from the best way to monitor employees to creating a culture of awareness and communication that means monitoring is not needed as the primary welfare tool” – Adam Penman, McGuireWoods
“Traditionally, time-tracking systems needed a great deal of manual input – such as the need to create an exception when employees forget to clock in or out. Thanks to the advent of AI, such instances can now be predicted, recorded and dealt with automatically,” adds Bello.
But Penman argues that just because we can, that does not necessarily mean we should.
He adds: “Our instinct when faced with a new problem is to reach straight for the technological solution, but perhaps a more humanistic approach would work best? If an employer is concerned that its employees may be overworked, it can always just ask them.
“Maybe there should be a change in focus from the best way to monitor employees to creating a culture of awareness and communication that means monitoring is not needed as the primary welfare tool.”
Ankur Modi, founder of Status Today, believes that his company’s application – called Isaak – can identify where employees might be overworked without intruding into their interactions with systems.
“Historically, AI technology has worked through interception, for example reading our emails for certain terms,” he explains.
“Isaak sits on top of the metadata that goes through the organisation – what comes out of the ‘digital exhaust’ – and can estimate areas where people might be overworking.”
Isaak can identify, for example, whether there are lots of emails sent over a weekend or particularly heavy exchanges or collaborations between managers and team members. It can benchmark this data against other areas of the company, as well as other organisations.
“I think the ECJ ruling is just the beginning. Companies will increasingly need this data to show they’re accountable for not overworking employees,” adds Modi, who says Isaak can be used to see which departments are working productively without putting in excessive hours, helping other teams to follow suit.
One company used Isaak to look at different roles and compared the output to reviews on Glassdoor. Where it had scored poorly or reviewers had referred to overwork or stress, this was reflected in the Isaak data. “There’s a worry that trade unions will feel this is Orwellian,” Modi admits. “But if they’re worried about burnout, measuring output is the first step.”
Right to privacy
But while the intentions around monitoring are often positive, is there a risk that lines could be blurred? While the ECJ has made it clear that employers need to track employee time more closely to avoid overwork, how does this sit with workers’ right to privacy?
Most HR professionals will be aware of the landmark case of Barbulescu v Romania in 2017, where an employee was sacked after his managers found him using a work Yahoo Messenger account to send private messages during work hours.
The European Court of Human Rights ruled that his employer had failed to protect Barbulescu’s right to private life and correspondence, overturning a previous decision that had been in the company’s favour.
Barry Stanton, partner and head of employment at law firm Boyes Turner, believes there will undoubtedly be tension between the requirement to comply and employees’ right to privacy.
He says: “The data that is collected will undoubtedly be personal data. This will require employers to set out in their relevant privacy notice the data that is being collected and what is being done with it.
“Since there will be a requirement to collect it, the employer will have the ‘compliance tag’ to rely upon, but only to the extent that it uses the data for its legitimate purpose.”
On a practical level, HR will need to be careful over access to such data, too. He adds: “Where such information was being collected, access to it, given that it is a form of monitoring, should be restricted to those who need to have access to it.
“In most instances, this would be the HR team who might then have the responsibility of raising concerns directly with particular employees or their managers.”
And if employers begin to feel comfortable with monitoring interactions or output for “compliance” purposes, where does that stop?
The Royal Society of Arts recently predicted that over the next 15 years, as more and more aspects of our lives are measured, life insurance premiums will be set with data from wearable monitors and workers in retail and hospitality will be tracked for time spent inactive.
Where to draw the line?
We might not quite be there yet, but according to GetApp’s research, 72% of respondents to its survey have access to employee conversations on internal communications tools such as Slack or Google Hangouts, compared with 56% in its last survey in 2015.
Furthermore, the law on CCTV surveillance allows employers to monitor employees in certain cases where they feel it is necessary to detect wrongdoing, so there’s relatively little stopping an organisation videoing its staff.
David Greenhalgh, employment partner at law firm Joelson, agrees that the expanding range of technology available to keep tabs on employees means that more data about them is available than ever before – but that doesn’t necessarily turn every employer into Big Brother.
“Some people think of employee monitoring as something sinister that only the most nefarious employers engage in, but in fact many employers have very good reasons for wanting to keep track of their employees’ activities at work,” he says.
Access to this information, given that it is a form of monitoring, should be restricted to those who need to have access to it. This would be the HR team who might then have the responsibility of raising concerns directly with particular employees or their managers” – Barry Stanton, Boyes Turner
“There is a vast range of legitimate reasons to do so, from assessing and improving performance to measuring employee efficiency and improving quality control.”
In fact, Greenhalgh believes that advances in AI will help protect the rights of employees to privacy, as it will “enable employers to analyse data automatically and autonomously, without individuals having direct access to it”.
Ultimately, decisions around employee monitoring have to be made within an atmosphere of trust – they shouldn’t simply be based on the need to comply. Arran Heal, managing director of workplace relationship consultancy CMP, says the key is to be open.
“Workplace cultures continue to be basically tight-lipped. Managers and their staff feel uncomfortable when it comes to speaking up about anything that might put them into the spotlight, lead to more questions and scrutiny, difficult conversations,” he says.
“When employers are more active in supporting and encouraging better conversations – more open conversations – then there’s a build-up of trust. And there’s no need to snoop in the first place, because issues of performance, all those kinds of niggling factors that affect relationships and honesty, and limit productivity and innovation, are swept out of the way.”