With the rise in remote work since the Covid pandemic has come a surge in workplace monitoring as businesses strive to protect themselves from security risks and, by 2025, it is estimated that 70 per cent of large employers will be monitoring their employees.
Employee surveillance takes various forms, ranging from traditional methods such as CCTV cameras to more sophisticated technologies such as computer monitoring and GPS tracking. While these measures may be well intentioned, they raise important questions about privacy, trust and the boundaries of employer authority.
So how does an organisation balance, on the one hand, protecting the best interests of the business and, on the other, not overstepping the bounds of what is lawful in terms of the legal rights of the employee?
The legal position
The Employment Rights Act 1996 and the Data Protection Act 2018 (DPA) play crucial roles in defining the rights and responsibilities of employers and employees. Any surveillance measures must be proportionate and respectful of an individual's privacy and the DPA enforces strict guidelines on the processing and handling of personal data.
Businesses that monitor electronic communications, such as emails or internet usage, must tread carefully. Employees have a reasonable expectation of privacy in their communications, and any monitoring must be transparent, proportionate and in line with established legal standards.
Additionally, with the prevalence of social media, employers must be cautious when monitoring workers' online activities. While tracking work-related social media accounts may be justifiable, intruding into an employee's private social media presence without proper cause could lead to legal challenges.
Risks and consequences
Employees who feel their privacy rights have been violated, or that their employer has acted in a manner that has undermined the employment relationship, may raise court or tribunal proceedings against them. A clear and well-communicated policy around the nature and extent of any monitoring is essential to minimise the risk.
Where the extent of the monitoring is also considered to be a breach of the data protection legislation, companies may face investigation and fines by the ICO.
Here are seven tips for businesses navigating the field of workplace surveillance:
- Employers must have a legitimate reason for implementing workplace surveillance: common reasons include ensuring the safety and security of employees, protecting company assets, preventing misconduct or complying with regulatory requirements.
- Notification and transparency: employers should provide clear information about the type of surveillance used, the reasons for it and the potential consequences for employees.
- Data protection laws: businesses must comply with their obligations under the General Data Protection Regulation (GDPR) and the DPA at all times.
- Employee consent: consent is not always effective in the employment context. Accordingly, employers should consider whether they can rely upon a lawful basis for processing personal data collected as a result of workplace monitoring.
- Impact assessments: organisations have a legal obligation to conduct a data protection impact assessment under the GDPR for certain types of data processing that are likely to result in a high risk to individuals' rights and freedoms.
- Employee rights: employees have the right to access their personal data held by the employer, request corrections to their personal data and, in certain circumstances, object to certain types of processing of their personal data.
- Record keeping: employers should keep careful records of their activities and the steps they have taken to protect employees’ rights to demonstrate that the monitoring has been done lawfully.
Key takeaway for employers
By respecting privacy rights, obtaining informed consent and adhering to data protection regulations, businesses can navigate the landscape of surveillance while minimising legal risks. It is crucial for employers to have comprehensive policies in place on employee surveillance and ensure that all staff are aware of what is being monitored and the reasons for this. Striking this delicate balance is essential to fostering a workplace environment that is both productive and respectful of individual rights.
Dawn Robertson is a partner and accredited specialist in employment law and Kimberley Tochel is a trainee solicitor, both at BTO Solicitors