The landscape of remote work presents a challenge for employers: how to monitor workers while respecting their rights and maintaining a balance between productivity and privacy. The Information Commissioner’s Office (ICO) has stepped in with crucial guidance, aiming to help employers navigate through what could become an area of complexity.
Survey Findings
A survey conducted by Survation of 1,012 UK adults found that:
- 19% believe they’ve been monitored by a current or former employer. This belief varied across age groups: 23% of 18-24s, 25% of 25-34s, and 11% of those aged 55+.
- Common monitoring practices among those who felt monitored included timekeeping and access (40%), followed by monitoring emails, files, calls, or messages (25%). The least common practice was taking screenshots or webcam footage (10%).
- 70% find employer monitoring intrusive, while 21% do not.
- Younger individuals (18-24s) are less likely (60%) to find monitoring intrusive compared to older individuals (55-64s) at 76%.
- Those earning less than £19,999 (63%) find monitoring intrusive compared to 72% of those earning £40,000+.
- The most intrusive practices include monitoring personal devices (83%), recording audio and video (78%), and taking screenshots or webcam footage (77%). Monitoring timekeeping and access is seen as least intrusive (47% find it intrusive).
- 57% would feel uncomfortable taking a job where monitoring is known, while 19% would feel comfortable.
- Men (22%) are more likely than women (16%) to feel comfortable, and younger individuals (26%) are more comfortable compared to older individuals (14%).
Understanding Workplace Monitoring
Workplace monitoring can include various checks on work quality, health, safety, and regulatory compliance. It extends to security measures and data analytics for inferring worker performance and well-being. Compliance with data protection law requires monitoring to be conducted lawfully and fairly, both on and off work premises and hours.
Monitoring technologies and purposes may include:
- camera surveillance including wearable cameras for the purpose of health and safety;
- webcams and screenshots;
- technologies for monitoring timekeeping or access control;
- keystroke monitoring to track, capture and log keyboard activity;
- productivity tools which log how workers spend their time;
- tracking internet activity and keystrokes;
- body worn devices to track the locations of workers; and
- hidden audio recording.
Impact of Excessive Monitoring
Excessive monitoring jeopardizes privacy, mental well-being, and data protection rights. Distinguishing between work-related and private information becomes challenging, especially with the prevalence of homeworking and the use of personal devices for work.
Ensuring Lawful Workplace Monitoring
While data protection law doesn’t bar monitoring, compliance is essential. The Human Rights Act and General Data Protection Regulation, emphasizes respecting workers’ private and family lives, particularly in homeworking contexts. Balancing business interests with workers’ rights, monitoring should be fair, transparent, and minimally intrusive to serve its purpose.
Identifying a Lawful Basis
Employers must identify a lawful basis for collecting and processing monitoring information. The ICO outlines six options: Consent, Contract, Legal obligation, Vital interests, Public task, and Legitimate interests. Assessing the best fit among these bases involves considering the purpose and context of monitoring.
Legitimate Interests and a Three-Part Test
Legitimate interests, the most flexible basis, entail a three-part test: Purpose, Necessity, and Balancing. Employers must establish a legitimate interest, its necessity for that purpose, and ensure it doesn’t override workers’ interests, rights, or freedoms.
In Conclusion
As workplace monitoring evolves alongside technology and remote work becomes standard, the ICO’s guidance remains a crucial compass for employers. It not only defines the legal framework but emphasizes the need for a thoughtful and balanced approach. Although there’s guidance available, it can still have some ambiguity. Which is why consulting a Data Protection Officer (DPO) is so valuable. This ensures a workplace culture that respects privacy in our ever-changing work world.
For advice on how to lawfully monitor workers, please reach out to me lynsey.hanson@tenintel.com
Happy navigating!
Written by
Lynsey Hanson | Data Protection Officer