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Monitoring employees working from home, is monitoring lawful?


A recent survey of over 2000 bosses conducted by the Chartered Institute of Personnel and Development (CIPD) found that half of bosses believe that there should be some form of monitoring of people working from home. 55% agreed with collecting information on regular home workers, with 3 in 10 surveyed reporting that they use software to monitor the productivity of home workers. Monitoring techniques could include using software to monitor timekeeping, productivity, keyboard activity and tracking internet or general computer use.


But what are the rules on monitoring home workers and what should employers consider when conducting monitoring?


Is monitoring employees lawful?


Provided you monitor employees in a way that is compatible with data protection legislation then yes monitoring is legal, whether employees are working from home or in your offices. You do, however, need to make sure you're not monitoring employees in a heavy-handed way or in a way that impacts their privacy. So be fair, transparent, open and follow the law and monitoring, in theory, should be ok.


What should you consider when thinking about monitoring employees?


There are a number of key areas to consider when monitoring employees;

  1. Why you want to monitor them

  2. What you want to monitor

  3. Having clear policies in place around monitoring

  4. The legal practicalities around monitoring

  5. How it affects your employees

Why you want to monitor them


With the first point, it's important to be clear as an organisation and to your employees why you want to monitor them. Transparency, in our opinion, is the key as covert surveillance well just does sit right but also could have a massively negative impact on your employee engagement and your employees feeling trusted to do their jobs. Make sure that if you are monitoring your staff it's for a necessary reason. Collecting data could potentially have an impact on an employee's human rights as well as have implications in terms of data protection.


You should carry out an impact assessment, so weighing up the pros and cons, related to monitoring employees. In carrying out this exercise you could review the benefits of monitoring, any potential downsides of monitoring and any alternatives you could consider.


What you want to monitor


Some people would argue that using tracking software doesn't actually capture all work. If employees are simply reading and reviewing a piece of work, choose to research a piece of work on a mobile device or use a pen and paper, tracking software won't pick up these activities and could make it seem like a proactive employee isn't actually working. Where employees are working on a hybrid basis software also won't track things like face-to-face meetings or ad-hoc conversations which are of course all part of an employee's normal working day. Some have also found ways to game the system with 'mouse gigglers' available to buy which move and giggle your mouse to make it seem like you're working to tracking software (I kid you not, someone actually invented these! 😫).


Be really clear about what you want to monitor and what you'll be using the information for.


Having clear policies in place around monitoring


If employers do decide to monitor employees it's incredibly important that you have a clear policy outlining what you're doing, why you're doing it and that you highlight this to your employees. You'll need to make sure that you highlight;

  • the reason you're collecting the data

  • how long the data will be kept for

  • and who the data will be shared with

You could go one step further and also include this within your contracts of employment to ensure you have confirmation that employees are aware of your monitoring practices or make sure you have HR software that logs someone having reviewed any relevant policies relating to data collection.


The legal practicalities around monitoring


Data Protection legislation in the UK doesn't stop employers from monitoring employees, but it does provide a framework meant to provide a balance when employers do this and protect employee privacy. When collecting data, which is likely to be personal, it's important to make sure that you don't fall foul of data protection legislation and have a lawful basis for processing the information. There are six lawful reasons for processing data;

  1. Legal Obligation- to make sure you comply with the law

  2. Contract- to make sure that there is compliance with an individuals contract of employment

  3. Legitimate Interest- that the processing is necessary for your legitimate interests

  4. Consent- that consent for processing/monitoring has been given- although this is a tricky point

  5. Vital Interest- where monitoring someone is required to protect their life

  6. Public Task- where processing is required to perform a task in the public interest

How it affects your employees


How many of us have worked for an employer who was intensely watching our every move, timed our lunches to the nearest second, watched you on your breaks and generally didn't seem to trust you? I can remember an old boss of mine dashing after an employee who clocked out too early and thinking perhaps that wasn't the workplace for me! How many of us still work for those employers now? Watching an employees every move this way is a massive turn-off for employees. The relationship between employees and employers, whilst obviously bound by contracts of employment, are also bound by trust. Whilst employers can monitor their employees it's incredibly important to maintain trust by being honest about what you're doing as an employer. Continually monitoring employees could have the effect of making employees feel less engaged and take less responsibility for doing good work as they don't feel trusted.


Employees will also have the right to access any data that you hold on them through what's known as a Subject Access Request (SAR) unless for some reason an exemption applies.


What information is available to help with monitoring employees?


The ICO have published guidance on monitoring employees at work which you can see here

https://ico.org.uk/media/about-the-ico/consultations/4021868/draft-monitoring-at-work-20221011.pdf the document has some really handy FAQ's which can help employers thinking about monitoring their employees.


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Disclaimer


  • All information within the post is provided for guidance only, always seek your own legal advice

  • The information with this post was correct at the time of publishing, October 2022 but maybe subject to change

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