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An employer may wish to monitor their employees to, amongst other things, ensure they are undertaking the work they are contracted and paid to do. Due to the somewhat forced prevalence of remote working as a result of the COVID-19 pandemic, some employers may feel their remote-based workforce more inclined to neglect their usual responsibilities due to the absence of face-to-face supervision normally present when working from the office. The increase in remote-working has been mirrored by a boom in the availability and uptake of ‘productivity intelligence’ for employers. The law does not expressly allow or prohibit such practices but there are many legal factors to the considered to ensure that an employer does not suffer financial penalties arising out of tribunal claims and/or data protection laws. Some of the ways in which employee monitoring interacts with UK law are explored below.

All UK individuals have a right to respect for family and private life by virtue of Article 8 of the European Convention on Human Rights as incorporated into UK law by the Human Rights Act 1998. It may be assumed that an individual’s right to privacy would be greater when working remotely. It is important that employers do not disproportionately infringe upon an individual’s reasonable expectations of privacy as they run the risk of being sued for damages for infringement of their Article 8 rights.

In an employee’s contract of employment there always exists a duty of mutual trust and confidence. An employer’s monitoring of their employee may constitute a breach of the aforesaid implied duty which may give rise to a claim for constructive dismissal. Subject to an employee’s length of service and other considerations a claim could be brought for constructive unfair dismissal in the employment tribunal which can command sizeable damages payable to the employee.

The obvious confliction with the law is in relation to data protection. The specific considerations relevant to any given employer will be dependent on their circumstances. However, there are some key provisions and principles in the UK GDPR that prompt discussion when looked at in the context of employee monitoring – these include:

– Lawfulness of processing: under UK GDPR all processing requires a lawful basis. The lawful bases are set out in Article 6. The only plausible option would be to rely on ‘legitimate interests’; it is important to note that it will not always be possible to justify monitoring on this basis. The greater the level of intrusion then the more difficult it becomes to justify the monitoring under this basis.

– Confliction with the Article 5 principles on processing personal data: one of the guiding principles in the UK GDPR is transparency. Therefore, it is essential that employers are open and honest about the monitoring and the extent of it when deploying such practices. Purpose limitation and data minimisation can be considered in tandem. Respectively, they seek to ensure that data is only collected for clear, explicit and legitimate purposes and that the data collected is not more than what is required to serve the intended purpose. Employee monitoring can often lead to the collection of data over and above what is necessary to satisfy the legitimate interest relied upon; employers can then be tempted to use the additional data for alternate purposes which is not in keeping with the UK GDPR.

– Data Protection Impact Assessment (‘DPIA’): where processing is likely to result in a high risk to the rights and freedoms of natural persons the UK GDPR provides that a DPIA shall be carried out. It is arguable that monitoring technology would trigger this requirement; it would be prudent to carry out a DPIA in any event to allay privacy concerns.

It is important that when considering the implementation of a practice such as employee monitoring, it is imperative to obtain specialist advice to ensure that your organisation does not end up on the wrong end of costly fines administered by the ICO and/or litigation instigated by antagonised employees.

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