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Remote working and employee surveillance

Napthens - June 2nd 2021

We are sure that it will not come as a surprise to hear that the impact of the Covid-19 pandemic drastically increased the number of individuals who are currently working remotely in the UK. While we have seen many businesses return to the physical workplace since the initial lockdown restrictions began to lift in June/July 2020, many employers are continuing to adhere to the Government’s ‘work from home’ guidance, where possible.

As the world has adapted to new ways of working over the last 18 months, it is thought that many employers will decide to continue with remote working practices beyond the end of the Covid-19 pandemic and the employee’s home will continue be their main place of work for years to come.

While remote working has advantages for employers such as financial benefits and greater flexibility, it also has its disadvantages as employers cannot physically see what employees are doing during their working hours as they could when all employees were in the same physical workplace.

The increased levels of remote working have been mirrored in respect of the purchase of software, by employers, designed to monitor employees’ productivity levels. With more employees expected to work from home for years to come, it is likely that an increasing number of employers will consider purchasing such software to collect data on employees’ productivity.

Employers who are not required by law to monitor employees for regulatory purposes (ie. those authorised by the Financial Conduct Authority) must ensure that they have considered the legal implications of any employee surveillance they implement for productivity monitoring or management information purposes.

Article 8 of the European Convention on Human Rights

Article 8 of the European Convention on Human Rights, as incorporated into UK law by the Human Rights Act 1998 (‘the Act’), provides all individuals with a right to respect for their private and family life, their home and their correspondence. As an individual ‘home’ and work lives are becoming increasingly similar, Article 8 is an important consideration for employers when considering the use of employee surveillance methods and/or monitoring software.

While the Act only applies to public authorities and other bodies, public or private, who perform public functions, it is advised that the guidance given below be adopted as best practice by all employers.

Employers should ensure they are using proportionate means of achieving a legitimate aim when implementing employee surveillance systems, meaning that an employer should always consider whether the use less evasive means could assist them in achieving their aim.

Data protection

It is important that employers also consider the data protection implications associated with the collection of data through the use of monitoring software. Employers should ensure that employees are made aware of what the purpose of the data collection is, what it will be used for and who will have access to the data.

Clear policies and procedures regarding the surveillance should be put in place and should be accessible to all workers.

Breach of Contract – Trust and Confidence

In every contract of employment, there is an implied term of mutual trust and confidence. Therefore, covert monitoring of employees is likely be a breach, by the employer, of trust and confidence and indeed, a breach of contract.

The introduction of such methods of surveillance is likely to send a message to employees that their employer lacks trust in them and this may result in a damaged employer-employee relationship. Unsurprisingly, the idea of being constantly monitored is likely to be demoralising for employees and could go further to cause issues of stress and anxiety for some employees which in turn, may result reduced productivity levels.

As an employer, if you are considering the introduction of such software, it is advisable that you are transparent with your employees about the implementation of the surveillance and you consult with all employees on how the monitoring will operate in practice. If possible, it is always advisable to obtain employee consent before implementing any surveillance measures.

Further, employers should ensure that the same measures are applied to all employees to reduce the risk of discrimination against any employee who has a protected characteristic.

How can we help?

This is a large topic of conversation and the approach taken will need to be adapted on a case-by-case basis. Our highly experienced Employment and HR Team is on hand to assist and will be able to explore this with you and your business further.

If employee surveillance is something you are considering and would like to discuss with a member of the Team, please do not hesitate to contact us for more information.