Monitoring employees in the workplace

Being monitored in the workplace is considered by many employees to be intrusive snooping. Employers consider it to be a necessary means of checking that staff are doing what they are being paid to do. If not handled properly, there can be a huge gulf between employers and employees in this controversial area and if an employer gets it wrong, they could face a claim.

The Information Commissioner's Office (the ICO) is an independent body set up to uphold information rights in the UK. It gives practical information about data protection and information rights for the public and provides guidance and resources for public bodies, private and third sector organisations and sole traders.

The ICO has issued guidance for employers on lawful monitoring in the workplace. The ICO states that research commissioned by them reveals that 70% of the public would find it intrusive to be monitored by an employer. Aimed at employers across both the public and private sector, the new guidance provides clear direction on how monitoring can be conducted lawfully and fairly. As well as outlining legal requirements, it also includes good practice advice to help employers build trust with their workers and respect their rights to privacy.

Monitoring can include tracking calls, messages and keystrokes, taking screenshots, webcam footage or audio recordings, or using specialist monitoring software to track activity. If an organisation is looking to monitor workers, it must take steps including:

• Making workers aware of the nature, extent and reasons for monitoring.
• Having a clearly defined purpose and using the least intrusive means to achieve it.
• Having a lawful basis for processing workers data – such as consent or legal obligation.
• Telling workers about any monitoring in a way that is easy to understand.
• Only keeping the information which is relevant to its purpose.
• Carrying out a Data Protection Impact Assessment for any monitoring that is likely to result in a high risk to the rights of workers.
• Making the personal information collected through monitoring available to workers if they make a Subject Access Request (SAR).

The guidance provides an overview of how data protection law applies to the processing of personal data for monitoring workers. It also considers specific types of monitoring practices, including the use of biometric data to monitor timekeeping and attendance.

Employers should consider taking specialist legal advice to ensure that they are adhering to the law and guidance in this controversial area.

To discuss this or any other employment matter, contact us.