Big Brother is watching – can you monitor home-workers?
The Government is no longer advising that employees work from home where they can. Nevertheless, many employers are considering keeping an element of home-working having seen success in this change to working practices during the pandemic.
Working from home has proved in many cases to have its benefits both in terms of productivity, improved work life balance and costs savings for businesses but it also presents certain difficulties, such as managing employees’ productivity when it is not possible physically to see what employees are doing. Employers might be wondering to what extent they can monitor employees in their homes, to check their productivity.
There are no laws in the UK which explicitly prevent monitoring of employees but there are wider legal considerations to doing so as we discuss below. In some cases, it may be enough simply to check in regularly with a home-working employee by phone or video call. Employers considering more intrusive means of monitoring, such as remote monitoring software which tracks employees’ activity levels, use of email and internet use, should however be aware of the legal obligations owed to their employees before implementing such software.
Employees have a right to respect for their private and family life. This right extends to the workplace, whether employees are working in an office or at home.
The right to privacy is not absolute and does not preclude employee monitoring but employers must ensure that any monitoring is proportionate. It is a sliding scale with the employer’s interests at one end and the employee’s expectations of privacy on the other. Employers will need to get the balance right to avoid a violation of an employee’s right to privacy.
There has not yet been a case dealing with monitoring home-workers and the extent to which it will infringe their right to privacy. However, existing case law on monitoring employees in the workplace indicates that failure to give employees prior notice of monitoring may be a violation of the employee’s right to privacy. Covert monitoring is therefore not advisable.
Trust and confidence
Employers need to give careful thought to the extent of employee monitoring and the effect that it may have on the employment relationship. A duty of trust and confidence is implied into every employment contract and in some circumstances excessive monitoring may cause the employee to lose trust in their employer. A breach of the duty of trust and confidence would entitle the employee to bring a claim of constructive dismissal against their employer.
Employers will need to take into account the data protection obligations owed to their employees if they intend to monitor them as failure to comply with data protection laws can lead to a hefty fine. These obligations include the following.
- As a starting point, employers must have a lawful basis for processing employees’ personal data for monitoring purposes.
- Employers must be transparent with their employees in relation to the monitoring. It must be explained to the employees how they will be monitored as well as what information will be collected and why.
- The data collected should be limited to what is necessary for the purpose. It should be considered whether the same result could be achieved by less intrusive means.
- Appropriate safeguards should be put in place to ensure the data collected is not misused.
Employers may monitor their employees, including their home-working employees. However, it is important to balance the need of the employer to maintain satisfactory productivity levels with employees’ expectation of privacy at work and rights under data protection law. Achieving the right balance will also assist employers in ensuring that the trust and confidence of the employment relationship remains intact. It will be important to give employees prior notice and provide them with sufficient information about the monitoring. A consistent approach should also be adopted and employees should not “single out” employees for monitoring without giving careful thought as to the risks of doing so.