Staff monitoring tools throw up legal and ethical issues - Liam Entwistle

Since the pandemic, remote work has become the norm for many businesses. While this has brought numerous benefits, it has also introduced challenges, particularly around employee productivity and accountability. Employers, understandably, want to ensure staff are working efficiently from home. But this has led to a surge in the use of monitoring tools, some of which can be quite intrusive.

A recent study from Forbes found 43 per cent of employees have their online activity monitored by employers. Some employees are even using virtual private networks (VPNs) to circumvent surveillance practices. The balance between monitoring for productivity and respecting employee privacy is delicate and requires careful consideration.

As an employer, it’s crucial to understand the legal landscape surrounding employee monitoring. In the UK, monitoring must comply with regulations such as the Information Commissioner's Office (ICO) guidance. The purpose of monitoring must be lawful and clear, and it must not be more intrusive than necessary. Employers cannot simply monitor staff all the time, simply for the sake of it.

Using tools like mouse jigglers to fake activity is, arguably, fraudulent and a breach of the implied term of trust and confidence. Monitoring such activity, if done correctly, is legitimate. If a monitoring system catches an employee with reasonably compelling evidence, it could be grounds for dismissal, and could well be gross misconduct. However, employers must be cautious about invasive monitoring. Setting up a camera in someone’s home, for instance, would be highly intrusive unless there are extraordinary circumstances. Such actions can lead to significant legal repercussions and damage employee trust and morale.

It might be tempting for employers to introduce rigorous monitoring systems, but it could be more productive to focus on outputs rather than constant surveillance. Monitoring can create mistrust and stress among employees, which can ultimately harm productivity. Instead, employers could consider evaluating performance based on results. If an employee can complete their work efficiently and meet or exceed expectations in less time than contractually required, it might be more beneficial to leverage their skills in other areas, not fixating on how many hours they are tapping at the computer.

Consider whether there are less intrusive methods to achieve the desired outcomes. This might involve training employees in expected work practices or conducting regular performance reviews to guide their work behaviour. If you decide monitoring is necessary, consider whether it can be confined to specific areas of your business and carry out an impact assessment on privacy.

To navigate the complexities of workplace monitoring, employers should take the following steps:

• Ensure monitoring policies are transparent and communicated to all employees. The purpose and extent of monitoring should be explicitly stated.
• Adhere to ICO guidelines and other relevant regulations. Regularly review and update policies to ensure compliance.
• Ensure you are not only monitoring hours worked but also assessing productivity/outputs.
• Avoid overly invasive monitoring techniques. It is important to recognise and leverage the efficiency of your top performers.

Liam Entwistle is an employment law expert at Wright, Johnston & Mackenzie LLP