Employee surveillance risks ‘spiralling out of control’, trade union warns

Experts warn monitoring workers’ emails, phones or webcams may not only damage trust but also put employers in legal hot water

Employee surveillance in the workplace has risen during the pandemic and now risks “spiralling out of control”, a trade union has said.

A survey of 2,209 workers in England and Wales, conducted by BritainThinks for the TUC, found three in five (60 per cent) workers said they had been under surveillance or monitored at work in 2021, compared to 53 per cent of respondents in a survey the year before.

In particular, more workers reported monitoring of staff devices (24 per cent in 2021 compared to 20 per cent in 2020) and monitoring of phone calls (14 per cent compared to 11 per cent) than in the year before.

Employee surveillance can also include monitoring of emails and files, webcams on work computers, as well as tracking a worker's typing, calls and movements using CCTV and trackable devices.

Frances O’Grady, general secretary of the TUC, warned that worker surveillance technology had “taken off during this pandemic, and now risks spiralling out of control”. She called on the government to create a right to disconnect outside of working hours, suggesting that it be included in the Employment Bill currently making its way through Parliament.

The trade union is also calling for a statutory duty to consult trade unions before employers introduce the use of artificial intelligence and automated decision-making systems, and universal right to human review of high-risk decisions made by technology.

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According to the poll, workers are also supportive of new regulations on the introduction of new artificial intelligence and technology-based surveillance in the workplace: more than four in five (82 per cent) said they supported a legal requirement to consult staff before introducing monitoring – an increase from 75 per cent in 2020.

Similarly, three-quarters (77 per cent) of employees also supported a ban on monitoring outside working hours, up from 72 per cent in 2020. 

And nearly three-quarters (72 per cent) of respondents believed that without careful regulation, the use of technology to make decisions about workers could increase unfair treatment, up from 61 per cent who believed this the year before. 

Commenting on the data, Hayfa Mohdzaini, senior research adviser in data, tech and AI at the CIPD, warned that “intrusive workplace surveillance can damage trust, have a negative impact on morale, and can cause stress and anxiety”, and called on firms employing surveillance to have clear policies in place. 

“Noting the potential negative impacts of excessive monitoring, employers may get better results driving productivity through investing in line manager training and providing employees with the support they need to perform their best,” she explained. 

There are various areas of UK law that employers need to be aware of, said Alan Lewis, partner at Constantine Law, including the right to privacy in the European Convention on Human Rights and data protection rules in the Investigatory Powers Act (2016) and the Investigatory Powers Regulations (2018). 

Firms also needed to consider GDPR compliance, said Paul Kelly, head of employment law at Blacks Solicitors. “Staff need to be aware of how the information gathered from workplace monitoring will be collated, stored and who will have access to it,” he explained, suggesting firms set out a comprehensive monitoring policy so all staff understand how they are affected.

Failure to inform employees of surveillance systems may, in some cases, lead to employers being in breach of data protection regulations, added Rachael Knappier, director of service at Croner.

“Similarly, if employees don’t know they are being monitored, any information or evidence gathered through surveillance processes may not be able to be used when dealing with disciplinary or other issues,” she explained.

She added that covert monitoring was not only a breach of data protection, but could also negatively impact employee relations and lead to individuals feeling like the implied term of trust and confidence has been breached by their employer. “Such instances pose the risk of successful constructive dismissal claims being raised,” said Knappier.