October 7, 2020
Rachel Ford-Evans, explores how far employers can go, and what they should do to ensure their actions are proportionate to employees’ rights in this area.
IT software which monitors employees’ computers is now becoming more mainstream so that employers can keep track of the hours worked by their staff, but one type of software which recently hit the news was a programme which goes further by also tracking the websites they visited, their keystrokes, and even their mouse movements. Another app actually takes photographs of employees at work on their computers, and uploads these photos to the employer’s server.
It is understandable that employers want to keep track of how much employees are doing while working remotely and monitor their productivity; this will not only help the employer to address any short-term performance issues, but may also help inform its longer-term strategy on homeworking. This is an issue with which many employers are now grappling, as it becomes clear that remote working will remain more widespread beyond the immediate COVID-19 restriction period. However, employers which use invasive technologies of the type described above are much more likely to fall foul of employment rights than those which use more proportionate means of monitoring their staff.
There are three main types of rights which could potentially be violated here: data protection, the duty of trust and confidence, and the right to privacy.
The most important step you can take is to have a written policy in place which sets out how you may monitor staff’s computers/devices, and crucially, why you will be doing this. This should be set out in some detail in the policy, so that staff can understand your legitimate business reasons for doing so.
Think through whether what you are proposing to do is necessary, or whether there is a more proportionate way of keeping an eye on staff. Does the nature of your employees’ work really require you to use intrusive monitoring software on them? If not, then even if employees know what you are doing, there is a risk that the duty of trust and confidence all employers have will be breached.
Ensure that your managers are trained on how your software can and should be used, so that there is no scope for abuse of your policies. Managers should also be trained in how to support staff who may be struggling to work remotely, as this could indicate a wellbeing issue as well as a performance issue.
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