Remote, agile, flexible – all are used to describe a more convenient way of working than the desk-based nine-to-five. Before the pandemic hit, this type of working was mostly used by working parents and more senior employees, enabling them to balance their work and personal commitments.
According to the ONS, around 1.7 million people reported mainly working from home in 2019, with 8.7 million saying they had worked from home before. This is expected to increase even after we are allowed to return to the workplace, whether that’s due to the company or individual’s preference.
The speed at which companies transitioned to remote working in March has shown that this type of working is not only possible for all, but offers a whole new way of doing business. However, with the rapid advancement of technology and home working, new legal considerations come into play.
Employers have been monitoring the activity of their employees where necessary for years – such as internet use and email content and traffic. However, with the rapid roll-out of new technologies in recent months and companies reviewing how they will work moving forwards, employers must ensure their remote monitoring is legally compliant.
Some employers may struggle with determining the appropriate amount of monitoring of remote workers. It usually takes the form of regular calls, emails and/or creating a table of matters being worked on, but can include more extreme methods of surveillance.
A major financial company has introduced enhanced monitoring of employees working from home, which includes capturing keystrokes, taking screenshots every 10 minutes and logging websites. They have been silent on whether senior employees are also subject to the same approach.
A start-up company called Sneek offers technology that takes pictures of employees through their work laptop and uploads them for colleagues to see. Pictures can be taken as regularly as every minute, while another system – InterGuard – takes pictures as often as every five seconds. News of these systems understandably caused a wave of concern about invasion of privacy and a raft of negative press coverage. It does seem alarmingly intrusive, but is it legal?
Balance of interests
Article 8 of the European Convention on Human Rights guarantees the right to respect private and family life, including correspondence. This was tested in the European Court of Human Rights in the case of Lopez Ribalda and Others v Spain, after an employer secretly recorded its employees. As a consequence, a number of employees were caught stealing and dismissed.
None of the employees were informed of the hidden cameras. The court held that their rights under Article 8 had not been violated. There had been concerns from the employer in respect of missing stock and recording the employees was necessary and proportionate.
Another case of interest is Bărbulescu v Romania. This case concerned the monitoring of an employee’s emails. The employee had not been informed of the extent of the monitoring, nor the fact that the content of the messages would be accessible. The court held that a fair balance between the interests of each party had not been struck; being the employee’s right to privacy and correspondence on the one hand, and his employer’s interests in respect of the company on the other.
In the UK, there is a variety of legislation governing the monitoring of employees. The relevant Act or regulation will depend on what you are monitoring and why. The legislation includes the Regulation of Investigatory Powers Act 2000, the Investigatory Powers Act 2016, the Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-keeping purposes) Regulations 2018, as well as the General Data Protection Regulation applicable EU-wide. Employers should be mindful of this and ensure that their approach complies with the statutory rules in the circumstances.
Remote working is here to stay and will certainly be the norm for many people moving forward. In determining whether an employer’s policies and its monitoring of its employees is legal, the following should be considered and actioned where appropriate:
- Act in a proportionate and justified manner, eg, in respect of the method used, there must be no other suitable, less intrusive option.
- Inform employees of the intention to monitor – this will also mitigate risk in respect of breaching the implied contractual duty of trust and confidence.
- Be mindful of the risks around discrimination. Employees could claim that they have been disproportionately targeted.
- Ensure sufficient safeguards are put in place to prevent abuse. Consider the extent and intrusion of the monitoring.
In a world where Zoom has opened up people’s homes to increased scrutiny, employers’ good practices must evolve and keep up with the rapid progression and use of technology.
Jonathan Rennie is a partner and Nicky Beach a trainee solicitor at TLT