The legalities of employee surveillance

7 Jul 2020 By Charlotte Marshall and Emma Vennesson

Charlotte Marshall and Emma Vennesson explain what employers should consider when it comes to monitoring their staff

Barclays Bank came under fire in the media earlier this year for its use of surveillance software that monitors and collects data on employees’ activities. Barclays had installed software on its systems that monitored employees’ computer activity in real time, as well as the amount of time they spent logged in each day, with some staff reportedly receiving emails that they had not spent enough time working productively, or ‘in the zone’, as one Barclays manager described it, and should cut down on breaks. Following the resulting media furor, Barclays subsequently withdrew the software, explaining that its implementation was to raise general productivity and improve its processes. 

Employee surveillance encompasses a wide range of activities, from systems that ensure employees are not accessing or circulating inappropriate or offensive material, to software that creates reports on individuals’ productivity and use of company IT systems, such as was used by Barclays. Such monitoring inevitably involves the collection of large amounts of employees’ personal data so employers should ensure any such monitoring is carried out in accordance with relevant data protection laws.

To comply with the Data Protection Act 2018 and the EU’s General Data Protection Regulations (GDPR), surveillance of employees will only be lawful if it is adequate, relevant and not excessive – but what this means in practice will differ depending on a company’s specific circumstances. Transparency is also key. Employers must inform employees about any monitoring they intend to carry out prior to its commencement. In particular, employees should be told what types of personal data will be collected, the legal basis for collecting such personal data, and the purposes it will be used for. 

Under current data protection law, there are various legal bases for processing employee personal data, but the employer’s ‘legitimate business interests’ is likely to be the most relevant legal basis when it comes to collecting and processing personal data through employee monitoring. Companies should give employees details about the legitimate business interests which are relevant in such cases, for example, in the interest of physical and IT security, or for the purposes of internal investigations.

Employers should carry out an impact assessment prior to monitoring employees, to consider why such monitoring is deemed necessary, the impact on its employees, and whether the monitoring is a justified and proportionate response. Employers should also ensure the personal data is not stored longer than is necessary according to the purposes for which it is collected and processed.

Employers should also consider employees’ right to a private life, as enshrined in Article 8 of the European Convention on Human Rights. Employers can justify interference with employees’ right to a private life if they can show that such interference is justified and proportionate and it is best practice for an employer to consider the impact on employees’ Article 8 rights as part of any impact assessment and record its reasoning.  

In addition to the legal considerations, employers should also think about the wider impact of monitoring staff. While a certain level of monitoring may be considered acceptable and reasonable by employees, such as monitoring the location of a company-owned car or the use of CCTV for security purposes, more invasive forms of monitoring are likely to be viewed negatively by employees.  

As in the case of Barclays, invasive or excessive monitoring can undermine employees’ trust and confidence in their employer (which could lead to claims) and create more generally an oppressive work environment. This can cause tangible issues such as poor productivity and lower retention rates. Employee surveillance should ideally be used sparingly, and not as a replacement for effectual workforce management. 

It is essential that companies consider carefully what monitoring they would like to carry out and its likely impact on the workforce. To ensure any such measures are not counter-productive, transparency and communication with employees is key. 

Charlotte Marshall is an associate and Emma Vennesson counsel at Faegre Drinker

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