Workplace surveillance is common among many employers, and with the rise of remote working, it has seen rapid growth. From health and safety to maintaining customer service standards, employers could have many reasons for wanting to monitor remote workers. However, individuals may be uncomfortable about their privacy being compromised or have questions about such surveillance.
We spoke to Tessa Harris, employment law director at Redmans Solicitors, about the topic to get insight from an employment law specialist.
The Law on Workplace Surveillance
Can Employers Monitor Remote Workers?
In the UK, no specific law governs workplace surveillance nor obligates or prohibits an employer from monitoring remote workers. Yet, legislation like the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA 2018) guide worker monitoring. The DPA 2018 states that monitoring must be:
- Lawful, fair and transparent
- Conducted with a specified, explicit and legitimate purpose
- Adequate, relevant and not excessive if it concerns the collection of personal data
- Accurate and keep personal data up to date
- Careful not to keep personal data for any longer than is necessary
- Secure to protect personal data
However, Tessa explained, “There needs to be a balancing act considering the legitimate objective of the monitoring against its effects”. With this, she turned our attention to Article 8 (1) of the European Convention of Human Rights (“ECHR”). This states, “Everyone has a right of respect for his private and family life, his home and his correspondence”. Therefore, monitoring shouldn’t be more than necessary to achieve its objective.
Before moving on, we asked Tessa if employers should inform remote workers they are being monitored. She says “Under UK GDPR, providing full information to employees about any monitoring is required”.
Are there any Grey Areas with Workplace Surveillance?
Since there’s no specific law regarding worker monitoring, we asked Tessa if there are any grey areas. To put it bluntly, she told us, “It’s all grey”. This is caused by the lack of legislation in this area. Despite this, she explained, “There are legal frameworks governing surveillance, including the Information Commissioner’s Office (ICO) monitoring guidance”. Therefore, employers and workers alike can turn to such sources for help.
What if Employers Monitor Workers Illegally?
After addressing the laws linked to workplace surveillance, we questioned the repercussions employers could face if they don’t comply. In such circumstances, Tessa stated an employer could face, among other things, “a breach of Article 8, GDPR, discrimination or unfair dismissal claims”.
Workplace Surveillance in Practice
What Workplace Surveillance Measures Could Employers Take?
After addressing the law, we thought remote workers may want clarification on the measures employers could take to monitor them. Simply put, an employer could use a vast array of methods in their surveillance and could monitor:
When discussing such measures, Tessa outlined why employers may monitor remote workers. She said, “Employers could use monitoring for performance reasons, training or, in more serious situations, assessments of various legal liabilities”.
We then asked her if employers could monitor personal devices. She explained, “The monitoring of personal devices is not specifically permitted unless used during business”; however, if an employer plans to introduce such measures, “the employee should be informed”.
Should there be a Monitoring Policy in Place?
Next, we addressed the importance of monitoring policies in the workplace. Ensuring a good workplace surveillance policy and employment contract terms are in place benefits employers and workers. From a worker’s perspective, this can improve trust with their employer through transparent and open correspondence.
Moreover, Tessa added, “The European Court of Human Rights has found that Article 8 hasn’t been infringed where an employee has been notified of the possibility that the employer might take measures to monitor correspondence and other communications”. Therefore, employers could stay legally compliant by introducing a sufficient monitoring policy. As such, they could minimise liability risks and claims made against them.
Do Workers Have a Say?
As mentioned earlier, there are no laws that enable or prevent employers from monitoring their staff. Ultimately, providing the employer is compliant with legislation; they can do so if they wish. However, we wanted to know if remote workers have a say.
Tessa told us, “ICO monitoring guidance advises employers to seek the views of workers”. She added that if they don’t, the ICO advises employers to record their decision with an explanation of why. This is because open and honest conversations about employee monitoring will help develop healthy working relationships.
Top Tips to Protect Your Privacy
What can Workers do to Protect Their Privacy?
Although employers may have workplace surveillance set up, we wanted to find out what remote workers could do to protect their privacy. We put this question to Tessa, and she provided us with some key tips for remote workers to keep in mind. Among other things, she advised to:
- Not use personal devices for work where possible
- Avoid using work devices for personal use
- Notify the employer if a worker wants to use a work device to transfer personal information and request this not be monitored
Additionally, she suggested that if an employee hasn’t been provided with information concerning possible monitoring from the outset of their employment, they should find out what’s in place.
What about if They’re Unhappy With how They’re Being Monitored?
Finally, we explored the actions a worker could take if they’re disgruntled with the monitoring their employer has in place. Upon asking Tessa, she stated, “It’s always advisable to speak with your employer informally in the first instance”. She reasoned that the employer may not be aware of the issues and could easily rectify the matter.
However, if this isn’t appropriate or leaves the worker dissatisfied, the worker could raise a formal grievance. She explained, “By raising a grievance, you are showing your employer that this is sufficiently serious to warrant an investigation”. In such circumstances, the employer must deal with the grievance fairly and comply with the ACAS Codes of Practice.
Unfortunately, the worker may still fail to find a resolution. If this occurs, Tessa said the worker “may wish to resign and claim constructive unfair dismissal in the Employment Tribunal”. However, litigation is always seen as a last resort, and alternative resolutions would be advisable in the first instance.
Get Help From Redmans Solicitors
We hope our interview with employment law director Tessa Harris has answered your questions concerning workplace surveillance. If you have any further questions or want legal assistance, contact Redmans Solicitors today. They are employment law specialists who could advise you on legal matters to help you obtain compensation.
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