Amazon fined €32m for ‘excessive’ employee monitoring: what are the rights and wrongs of checking up on staff?

People Management asks the experts whether it’s ever OK to keep tabs on your workers after the retail giant came under fire

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Amazon was recently fined €32m (£27m) for "excessively” monitoring its employees in its French warehouse, raising the question of what effect this has on workplace culture and if it is legally and morally sound to keep closer tabs on employees.

The French data protection authority, CNIL, said Amazon France Logistique – which employees 20,000 people – used an “excessively intrusive” system to track work performance and breaks, after employees were given scanners that tracked their productivity and periods of inactivity.

The CNIL said: “The implementation of a system measuring interruptions of activity so precisely and leading to the employee potentially having to justify each break or interruption was illegal.”

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However, Amazon opposed the findings, with a spokesperson telling People Management: “We strongly disagree with the CNIL’s conclusions which are factually incorrect and we reserve the right to file an appeal.

“Warehouse management systems are industry standard and are necessary for ensuring the safety, quality and efficiency of operations and to track the storage of inventory and processing of packages on time and in line with customer expectations.”

A few days later, the Financial Times reported that ‘big four’ firm EY has begun to monitor workplace attendance using swipe card entrance data, after employees were reportedly not following hybrid working guidelines.

People Management analyses the impact of employee monitoring, as well as the consequences of workplace surveillance.

Can monitoring be detrimental to productivity?

Research from Gartner has found productivity monitoring has doubled since Covid, as employers attempt to keep track of remote teams and their workloads.

Further research from the TUC found three in five (60 per cent) employees feel they have been subjected to some type of workplace surveillance and monitoring. 

But, commenting on EY’s decision to track workplace attendance, Barbara Matthews, chief people officer at Remote, tells People Management: “Tracking office attendance can be a warning sign of distrust between employer and employee as it signals a belief that employees need to be physically present and monitored by managers to be productive.”

She says this can create a “sour foundation” for the relationship between management and employees and leave workers feeling mistrusted, which can negatively impact productivity.

According to Gemma Dale, lecturer at Liverpool John Moores University, excessive monitoring of staff is potentially “problematic”. “Excessive control is known as a cause of stress, for example,” she says. “It also creates a culture of low trust and places unnecessary pressure on employees.

“For example, no one should feel that they cannot take a short bathroom break without it being questioned and monitored.” 

However, while Dale says it is understandable that organisations may want to monitor performance to understand areas for improvement, “there needs to be a balance between their need to do so and what is good for engagement, culture and wellbeing”.

“Excessive monitoring will not help people to perform at their best,” she adds. 

David Liddle, CEO of The TCM Group, says: “Driving productivity and monitoring performance are key roles for managers and leaders. 

“At the same time, creating a humanising workplace underpinned by health, happiness and harmony are central features of a great workplace culture, a transformational culture. 

“When the balance tips in favour of micromanagement and surveillance the bond of trust is broken, leading to toxicity and division.”

Legal implications

According to Rob Smedley, director of employment law at Freeths, “excessive and unreasonable” employee monitoring raises a number of legal concerns. 

“From an employment law perspective, systematic monitoring across an entire workplace can be seized upon by trade unions for recognition purposes or industrial action,” he says.

Smedley also argues that individual employees may allege a “fundamental breach of contract”, claiming that the employer violated their implied duty of trust and confidence, or the duty to provide a safe working environment. “This opens the door to a whole host of employee relations issues and potential claims,” he says.

Will Richmond-Coggan, partner in the data protection team at Freeths, says workplace surveillance also raises challenging data protection and privacy issues for employers. “The more intrusive and impactful the surveillance, the greater the importance of demonstrating why it is necessary and, crucially, why some other less intrusive form of monitoring was not suitable,” he explains. 

“Before deploying such technology, employers should be undertaking appropriate impact assessments that might well involve consulting with employee representatives to understand and address their concerns.” 

Ashley Scriven, partner and solicitor advocate at Loch Associates Group, says: “Employers need to consider the bigger picture beyond data protection and the impact that monitoring has on team morale and the mutual term of trust and confidence between an employer and employee, which is implied into every employment contract.”

She adds that excessive monitoring could cause a breakdown in relationships, ultimately leading to employees resigning and bringing claims for constructive unfair dismissal. 

“It is lawful for employers to monitor their employees, but the important thing to remember is that this should be justified and proportionate,” says Jim Moore, employee relations expert at HR consultants Hamilton Nash. 

“Many workers feel uncomfortable at the thought of being monitored by their employer, so managers must carefully consider its potential impact on the culture in the workplace. They also need to ensure that monitoring is as minimally invasive as possible.”

Data protection

Mandy Armstrong, partner at Anderson Strathern, says there are several ways for employers to monitor their employees; however, the use of surveillance will require the processing of employee data, which employers must ensure is carried out in line with the general data protection regulations (GDPR).

“In very basic terms, the GDPR requires that processing is carried out lawfully, fairly and in a transparent manner,” she explains.

Paul Holcroft, managing director of Croner, says individuals have the right to respect for their private lives and that, “to avoid falling foul of this, employers will need to ensure that employees reasonably expect that they will be monitored”.

“Employers will need to ensure that any personal data that is captured through monitoring is processed in accordance with data protection legislation and that it is kept safely, securely and only retained for as long as there is a lawful reason for doing so,” he says.

Explore the CIPD's resources on legal issues relating to data protection, surveillance and privacy in the workplace