In an era dominated by technological advancements, the notion of “Big Brother is Watching You” has transitioned from dystopian fiction into a reality within workplaces. By Pam Loch of Loch Associates Group
From biometric clocking-in systems, to monitoring staff through mediums such as closed-circuit television (CCTV), email and key stroke tracking, desk and movement monitoring –employers now have such a wide range of choice. However, is monitoring
staff micro-management verging on bullying, or an essential tool to manage people nowadays?
Through monitoring using CCTV surveillance, employers can pinpoint bottlenecks in production lines, identify development needs or support as required, and assess the impact of different shifts on production rates. Armed with these insights, management can implement process improvements, such as adjusting shift schedules or fine-tuning routines. These measures optimise workflows, minimise delays, and lead to a more resource-efficient operation.
Activity monitoring can extend to software which logs every keystroke, mouse click, internet search, social media use and can even take screenshots and provide live video feeds to ascertain what someone is working on. For employers, it means they can track progress and ‘keep an eye’ on staff, especially when remote working. This data-driven approach could also help employees’ development by identifying coaching and training needs. However, these potential gains must be considered alongside the legal, ethical and privacy implications associated with surveillance.
Workplace monitoring usually involves processing personal data and is therefore governed by the General Data Protection Regulation 2016 (GDPR) and the Data Protection Act 2018. If the employer falls into the category of being a public authority, then they also have to take into account Article 8 of the European Convention on Human Rights and the Human Rights Act 1998. This is because gathering information on staff at work involves personal data and could infringe the person’s rights. There are also potential contractual implications as there is a duty of mutual trust and confidence between the employer and the employee. Non-compliant monitoring at work could result in a breach of this duty leading to constructive unfair dismissal claims.
Recognising the growth in monitoring and the need to protect personal data, the Information Commissioners Office (the ICO) launched a consultation on draft guidance on monitoring at work. This guidance can be found on the ICO’s website at www.ico.org.uk.
The ICO makes it clear that any decision to monitor staff should ‘involve careful balancing between the business interests of an employer and the workforce’s rights and freedoms in relation to their personal data’. In other words, simply because you have the tools to monitor staff, you still must consider if it is the best way to achieve your objectives.
To lawfully monitor staff, an employer has to be able to identify one of six lawful bases to justify it. The most likely lawful basis an employer can rely on is Legitimate Interest – where the monitoring is necessary for legitimate interest unless the risks to the employee’s rights overrides them. However, employers will have to carry out an assessment as to whether or not they could achieve their objectives in a less intrusive way. If they could, then they will not be able to rely on the legitimate interest basis to justify the monitoring.
Monitoring workers will often include collating sensitive data which brings additional obligations with it. This data being collected is called the ‘special category’. This means that it needs more protection because of the nature and the risks of harm to the person if there is inappropriate disclosure or use of the data. Employers will have to identify a special category condition, from a list of ten, to lawfully process the data.
Employers must not only carefully consider the data protection implications of monitoring but also the potential impact on the employer – employee relationship. The pervasive nature of constant surveillance can infringe upon employees’ rights to personal space and create feelings of discomfort and unease.
Trust erosion can emerge as a major challenge as monitoring can foster an atmosphere of distrust between employers and employees, undermining open communication and collaboration. If not appropriately managed, monitoring tools can lead to a culture where employees feel closely scrutinised, curtailing auto-nomy and stifling independent decision-making. The pressure of performing under surveillance can contribute to heightened stress levels, impacting employees’ mental well-being.
In addition, the issue of data security cannot be overlooked. Workplace monitoring systems will gather valuable data. Workplaces are not immune to cyber threats, exposing sensitive employee data to potential breaches and unauthorised access.
The juxtaposition of the pros and cons of workplace monitoring necessitates a careful evaluation of whether the benefits outweigh the risks. While the advantages hold an appeal, they must be balanced against the potential privacy infringements, trust erosion, and stress associated with monitoring.
A considered and measured approach which emphasises transparency, proportionality, and employee consent can alleviate many concerns associated with monitoring. The decision to use workplace monitoring methods should therefore be guided by a well-informed consideration of both the operational benefits and the potential impact on employee wellbeing and privacy.
Pam Loch, Solicitor and Managing Director of Loch Associates Group