With full-time office-based working becoming a thing of the past, employee monitoring is on the rise. The Information Commissioner’s Office (ICO), the UK independent executive body for information rights, has published monitoring guidance in response.
We look at the key findings of the ICO and explore what they recommend employers do before monitoring employees. This guidance also reflects what HR must consider to comply with employees’ rights and legislation.
If you have any questions about employee monitoring or your rights, feel free to reach out to Redmans Solicitors. They are experts in all areas of employment law, providing advice and helping clients through the legal process.
Topics We Cover
- ICO Research About Employee Monitoring
- What Must Employers Consider Before Monitoring Their Employees
- Key Points For HR About Employee Monitoring
The ICO surveyed to learn more about the growing presence of employee monitoring. Their research found that almost one in five adults believe their employer has monitored them. Timekeeping at 40% was the most frequently used monitoring method.
The ICO’s findings highlight that 70% of participants think workplace monitoring would be intrusive. However, this view appears to be held more firmly in older generations, as only 60% of people aged 18 to 24 had the same opinion. This is still the vast majority of those asked, though.
Interestingly, 48% of respondents under 35 believe their employer has monitored them. On the contrary, only 37% of responders aged 35 or older felt the same. This may suggest a growing presence of employee surveillance with each new generation.
Employee monitoring guidance published by the ICO highlights the need for employers to comply with employees’ rights, including data protection laws. They stated that although “data protection law does not prevent monitoring, it must be necessary, proportionate and respect the workers’ rights”.
The specific legislation employers must adhere to includes the Data Protection Act 2018 (DPA) and the UK General Data Protection Regulation (UK GDPR). This legislation outlines how and why employers can collect personal data (through monitoring employees).
Depending on whether the monitoring involves general or special category personal data, the steps an employer must take will differ. This is because special category personal data, such as information about your ethnic origin, is more sensitive and requires greater protection.
The ICO explains that to gather and process personal data for monitoring, employers must identify a lawful basis. There are a total of six, including consent, contract, legal obligation, vital interest, public task and legitimate interest, and at least one must apply to proceed. Should the monitoring include special category data, the employer must also identify a special category processing condition to continue.
To help employers comply with their legal obligations, the ICO recommends completing a data protection impact assessment (DPIA). In fact, in some circumstances, this is a legal requirement. By conducting a DPIA before monitoring employees, employers ensure they are:
- Being fair in the way they surveil their employees
- Transparent with employees about what they are doing
- Accountable for their actions and comply with the law
Following the publication of ICO employee monitoring guidance, HR should think about company practices to ensure they stay legally compliant. Among other things, HR should consider:
- If employees are being made aware that their company is monitoring them. Transparency helps build trust in the workplace, so HR needs to know how and why employers will monitor their employees.
- Whether the method of monitoring employees is the least intrusive option available. Should this not be the case, the monitoring may not be proportionate and could breach employees’ rights.
- If the employer can identify a lawful basis. As outlined in the guidance, this is essential to proceed with monitoring employees. Supposing a lawful basis cannot be determined, HR must ensure the monitoring doesn’t go ahead.
- Whether the information collected is relevant. Again, if the information isn’t relevant, this may breach the rights of an employee.
- If a DPIA has been completed before monitoring employees. In some cases, this is a legal requirement. However, even if it’s not, a DPIA will help a company stay legally compliant.
If you have questions about employee monitoring or believe your data protection rights are being breached, contact Redmans Solicitors now. An employment lawyer from the firm could advise you on your next steps and help you make a claim if needed.