It was reported recently that Amazon faced a fine of €32 million for “excessively monitoring” staff at one of its French warehouse operations. Amazon has said that it intends to appeal against the fine, but the case has highlighted the extent to which some employers are using technology to monitor the activities of their workers. According to TUC research, over 60% of workers feel that they have been subjected to some form of surveillance or monitoring in their current or most recent job. More anecdotally, it seems that some of the surge in monitoring may stem from the increase in hybrid working or working-from-home arrangements over the past few years.
The level of monitoring seems to vary between industry sectors. Some organisations opt for mainstream tools (such as tracking emails and timekeeping) while a minority opt for more intrusive means (such as live webcam footage and tracking locations during work hours). However, employee surveys are clear on one thing across the board; if monitoring is too intensive or does not respect the employee's privacy, it can damage trust, cause undue stress and reduce productivity. In some circumstances, it could also breach employees’ legal and human rights.
Data protection law does not prevent employers from monitoring employees, but if they choose to monitor staff activities they must do so in a way which is compliant with the law. The Information Commissioner’s Office (ICO) recently published guidance to help employers understand their obligations.
Below we have set out some “Do’s and Don’ts” for employers to consider when reviewing their policies and procedures on remote working and surveillance:
Do:
• Consult with employees (and any representatives) before introducing any form of monitoring. Try to agree a policy that includes employee input/ideas.
• Try to ensure transparency. You must tell employees about any monitoring arrangements and the reason why the monitoring is needed, except in very limited circumstances (for example, if the monitoring is intended to identify potential criminal activity).
• Carry out an “impact assessment” to decide whether and how to monitor employees. This should include consideration of the following:
- Identifying benefits vs. negative impact of the monitoring.
- What is the least intrusive way to get the data you need?
• Ensure you have clearly identified a lawful basis for processing employee data (such as legal obligation, contractual agreement, or consent - but see more about consent below)
• Make the personal information collected through monitoring available to employees if they make a Subject Access Request.
Don’t:
• Assume that because monitoring is documented or explained to employees that it is automatically lawful. In particular, Article 8 of the Human Rights Act 1998 (right to private life) is potentially relevant here. For those who work from home, expectations of privacy are likely to be much greater at home than in the office and the risks of inadvertently capturing information about an employee’s family and private life are inevitably higher.
• Rely solely on consent as a legal basis for processing personal data - this is usually not appropriate, because of the presumed imbalance of power between employee and employer. If consent is relied upon, you must ensure that it is explicit and that it can be withdrawn at any time without detriment.
Whilst the ICO guidance is fairly long and detailed, it is worth a read, not least because the ICO has various powers to take action for breaches of data protection rules. This includes the power to issue enforcement notices and big fines of up to the higher of £17.5 million or 4% of a company's annual worldwide turnover for very serious breaches.
If you would like advice on the matters discussed in this article, please contact any member of our Employment Team.
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Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.