Getting the right balance with employee tracking

by Bryony Goldspink, partner and employment law expert.

This article first appeared in the Employment Law section of HR business title, People Management which you can access here.

The Information Commissioner’s Office (ICO) recently published guidance for employers around workplace monitoring.

This came out of the ICO’s survey that revealed 19 per cent of people believe they have been monitored by an employer.

There are many reasons why employers need to know what their workforce is up to outside of safeguarding productivity, which has had more attention since hybrid working became more prevalent.

However, the extent to which employers monitor workforces is a contentious topic. Meeting a monitoring policy’s objectives while safeguarding privacy and ensuring a positive, trusting company culture also poses a challenging balancing act.

There are many valid reasons for workplace monitoring

In some cases, monitoring is essential in today’s workplace. Although many employees will cite the top reason their employer is monitoring them is to check if they are working, there are other ways they are being observed. Many will also recognise these as valid use cases.

Additional reasons which can support employee/employer benefits and make sense. These include policy compliance, training checks, fire safety, security, crime prevention, handling confidential data and deterring inappropriate behaviour.

Employers can monitor their workforce continually or on an ad hoc basis in response to a specific issue and it can be done overtly or covertly for example during an ongoing investigation.

Yet before any monitoring takes place, there are key data and privacy protection requirements employers need to be aware of and navigate.

Assess the objectives of any monitoring activity

The first step in navigating responsible employee monitoring activity entails carefully weighing up the objective of any monitoring against employee privacy infringements.

This means data protection impact assessments will be required for any sort of data processing which is likely to impact the personal rights and freedoms of employees.

Controversial examples – which employers should not readily turn to – comprise more covert methods including video recording such as at home or in the office.

Other approaches also comprise monitoring and recording personal internet and email use and using tracker technology as well as what employees are doing in their personal time or when working from home. The latter can also include investigating an employee’s social media presence as part of an investigation or even during the recruitment process.

With this spectrum of tactics available, they need to think carefully about what is acceptable. This means considering what type of monitoring is proportional against what insights are needed about employee activity. Importantly, monitoring tactics need to have contemplated whether the same objective can be met with less intrusive methods.

Covert monitoring should only be required in the most extreme examples of workplace investigations where employee knowledge would be detrimental. A similar tact should also be taken for employee monitoring outside of contracted hours.

Employers need to be open with workplace monitoring

There will always be employee monitoring. But in today’s privacy conscious world, employers will always need to consider “why?” before acting.

Applying a blanket monitoring approach with a basic, poorly articulated and flimsy rationale of simply checking on productivity runs the risk of fostering poor employee relations. This will only pave the way for resignations and a poor external reputation hampering employer attractiveness to potential candidates.

To mitigate against these risks, it is crucial for employers to be transparent through clear policies explaining to employees what is being monitored, why and how.

Importantly, they need to ensure that intrusion is minimised and illustrate these in workplace policies. These could include limiting the times for keystroke monitoring, using trackers only during working hours and limiting who has access to the monitoring data and in what circumstances it can be accessed.

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