Big Brother may be watching…
Released On 3rd Oct 2022
Recent YouGov research has highlighted a clear difference in views between businesses and homeworkers in respect of the impact of homeworking on productivity levels. Perhaps unsurprisingly, more homeworkers than not, believe they are more productive when working from home and generally more bosses than not, believe that homeworkers are less productive when working from home.
Whilst it is obviously important to trust homeworkers to do their jobs at home, the suspicions of some employers has resulted in them monitoring homeworkers’ performance levels. Some have even gone as far as installing covert surveillance software which periodically turns on the homeworker’s webcam to check they are at their computer!
So, what are the rules on doing this?
The short answer - it is generally not illegal to monitor homeworkers (or any workers, in fact). However, businesses must comply with various laws, the main ones being:
- The Investigatory Powers Act 2016.
- The Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-keeping Purposes) Regulations 2018; and
- the UK GDPR.
Broadly speaking the above laws require employers to:
- Carry out a data protection impact assessment (DPIA) especially before deciding to introduce any new system of monitoring activity so as to determine whether it should be monitoring and if so, how it will do it. This type of assessment should include, amongst other things:
- why and how the employer wants to monitor staff and the benefits of doing it.
- if there are any negatives to monitoring and whether these override the advantages.
- consideration of other options to monitoring and if there are other (less invasive) ways of carrying it out.
- how the information will be collected, used, stored and how long it will be retained; o if there is a legally valid reason (i.e., a legitimate interest) for carrying out the monitoring.
- If the employer’s DPIA concludes that monitoring is proportionate and lawful, when balanced against workers' interests, including their right to privacy, then the employer should tell its staff and consult with them about the monitoring activities, including for example, what data it will be collecting, why it is collecting it, how it will be collected and used and its plans for storing and retaining that data.
- Employers should ensure they have a clear policy on monitoring, and that staff are aware of it and understand it. This policy should be regularly reviewed and updated, as should the Employer's Privacy Notice. Workers have the right to understand in plain English how data related to them is being collected and used.
- The monitoring should be fairly and consistently applied, so as to prevent the singling out of certain individuals.
Otherwise, employers risk running into all kinds of legal problems including employees:
- Raising grievances.
- Alleging discriminatory treatment and bringing claims
- Resigning and claiming constructive dismissal.
- Claiming for breaches of privacy and/or data protection laws.
- Complaining of data protection breaches to the Information Commissioner’s Office; and
- Bringing claims of harassment.
...to name just a few!
What constitutes monitoring?
Well, it might be wider than you think or first realise. Some examples may include clocking in systems, swipe cards, CCTV, inadvertent tracking software on mobile devices, and tachographs on vehicles…. give some thought to the data you are collecting, whether deliberately or not. Every business is different, and things often change.
As always, if you would like any advice in relation to monitoring your staff, please do not hesitate to get in touch with a member of the Team.
