Microchipping, webcam recording and GPS tracking may not be your first thought when it comes to the work place, but this has become a reality for many employees in recent years. Since the start of the pandemic the demand for monitoring software has more than doubled, making it easier than ever for an employer to track every click, every movement and every break an employee takes.

In this article, our Employment and Data Protection teams will explore the methods that are used to monitor employees, consider the relevant legislation governing this area and offer some suggestions as to how monitoring can be lawfully carried out.  

Staff monitoring in the news

Amazon have been known to have one of the most stringent employee monitoring systems in the world. In the UK and the US they are beginning to implement AI cameras in delivery vehicles. The algorithm used can decipher what is happening in and around the vehicle, can trigger audio alerts if the driver has failed to react to an event, or silently log actions such as not wearing seatbelts or blocking cameras. In the US it has been reported that employee bonuses were affected based on behaviour detected by the cameras.  While Amazon have suggested that introducing these systems has helped to reduce the number of lost packages and the number of road accidents, many privacy experts would like to see intrusive worker surveillance banned.

A UK based company has also reportedly microchipped the hands of 150 volunteer employees, allowing them to access buildings, sign into computers and make payments with just a wave of their hand in front of a reader. While these chips do not currently contain tracking capabilities, chip readers have been developed which can give a basic outline of map of movements based on previous scans.

Although this type of monitoring may be a far cry from that used by the average employer, there has nonetheless been a significant increase in the use of slightly less intrusive methods of employee monitoring. As such, it is becoming an ever-developing threat to privacy.

What methods are there for monitoring employees?

Some of the most common methods of employee monitoring include:

• Bag searches
• Drug testing
• Screen captures
• Keystroke captures
• Email searches
• Internet/app usage
• Webcam recording
• CCTV
• Recording phone calls
• GPS vehicle tracking

How does monitoring affect employees?

A third of UK workers are now being monitored using technology such as tracking software, with younger workers more likely to be monitored by employers.  Statistics from research carried out by Prospect show that around 48% of 18-34 year old workers being monitored in some way.

Whilst this poses the obvious risk of age discrimination, it also appears to have a detrimental effect on employee engagement. Some studies have recently shown that employees who are monitored often become less productive and lose trust in their employer. It can therefore have a detrimental impact on the employment relationship.

What can employers do?

Understandably, employers want (and need) to have some control over their employees. Businesses need to run as smoothly and productively as possible, but with working from home becoming the norm in this (almost) post-pandemic world, it has become more difficult to guarantee that employees are doing their jobs.  Ultimately, the proof is in the productivity rates and profits for the business.

While there are no explicit rules on employee monitoring, the Data Protection Legislation (which includes the UK GDPR and the Data Protection Act 2018), the Equality Act 2010 and the Human Rights Act 1998 provide some governance for employers whilst allowing them to monitor employees in certain circumstances.

There is, however, no one size fits all approach. All business are different but employers need to bear in mind that employees do have the right to some privacy at work - even during working hours. If monitoring is to take place, it needs to be made absolutely clear to those being monitored that this is happening and the reasons for doing so.  Unjustified monitoring could put the employer at risk of breaching the implied term of trust and confidence, leading to claims for constructive unfair dismissal. There could also be the risk of claims for discrimination, should the employee believe that they are being treated less favourably from their colleagues. 

Any employer considering monitoring its employees should therefore explore other options before making a decision to monitor employees, including, for example:

• Are there less intrusive ways to reach the same outcome?
• Could extra training be put in place to help employees do their jobs?
• Could there be extra performance reviews to ensure employees are staying on track?

Consideration will also need to be given as to what technology may be available to assist, and what exactly the monitoring will look like, including the issue it seeks to address. 

Once the decision has been made, the employer (as a data controller) will need to consider their lawful basis for processing the data, and, if this is legitimate interests, make sure the relevant impact assessment has been carried out.  A Data Protection Impact Assessment (DPIA) may also need to be conducted to assess whether the monitoring is proportionate and appropriate. 

Various other documents, including, for example, the written record of processing, the data retention policy and the employee privacy information notice will also need to be updated.  There are also employment-related policies to consider, so that employees are aware of the monitoring that may be taking place, and how they can take steps to protect their privacy at work.  This might include, for example, details within the IT policy that emails may be monitored and therefore employees are discouraged from using work systems for personal emails.  Creating documents such as this, and being transparent with employees, helps to justify the monitoring from both an employment and data protection perspective. 

Some employers may believe covert monitoring of their employees would be more beneficial than an overt operation.  However, under the Data Protection Legislation, this should only be done in exceptional circumstances (for example, where it would defeat the purpose of the monitoring if the employee became aware of it - such as to catch an employee breaking the law). If covert monitoring is taking place, a DPIA must be completed and the monitoring should cease after a limited period of time.

In addition, employees should also be informed if the employer intends to use covert monitoring, and this should also be documented within the privacy information notice and other relevant policies.

Are changes likely?

Given the pace of technological advances in surveillance and monitoring techniques, and as home-working is looking like it is here to stay, we can expect the issues associated with employee monitoring to become more entrenched in the public consciousness. As it does so, there is also likely to be a corresponding increase in claims to the employment tribunal which specifically address these issues, as well as the possibility of increased involvement and enforcement action by the ICO for non-compliance with the Data Protection Legislation.  Indeed, we know that the ICO is currently reviewing its guidance for employers on the use of monitoring technologies to ensure it is up to date with the increase in the use of these types of technologies.

It is likely, therefore, that in the not-too-distant future, a new body of case law and/or legislation is generated that provides clearer guidance for employers to take into account when considering the introduction or expansion of employee monitoring. 

Prettys Employment and Data Protection teams have a wealth of experience guiding employers through complicated areas such as this.  For further advice and assistance, please contact the team directly via Employmentexpert@prettys.co.uk.