Employee Monitoring: Legal Guide for Employers

A rise in remote and flexible working arrangements have precipitated the growing adoption of employee monitoring by employers. While employee monitoring may traditionally have related to CCTV within the workplace, recent surveys have shown increased use of other methods such as webcam surveillance at home, specialist monitoring software and proof of work capture.

For employers, use of employee monitoring technology and techniques raises a number of risks. Legally, issues can arise relating to privacy and data protection. In addition, employers should also take into consideration the impact of monitoring on employees, and the potential to detrimentally affect workforce morale and engagement.

But employee monitoring should not necessarily only be considered in negative terms as a way to ‘catch out’ poor performance or behaviours. ‘Control’ is a recognised function of management within an organisation, and monitoring can reasonably be regarded as a proactive and positive way of exercising such control over employees, for example by tracking work in progress.

 

Can employers monitor employees?

Employers generally have the right to place their staff under surveillance, but employees must be notified they are being monitored. Businesses must also ensure all measures taken are “relevant, necessary and respect people’s privacy.”

 

Common mistakes while monitoring employees

Improper monitoring is just as destructive for a company as uncontrolled employees. The most common problems encountered include:

Punitive supervision

This is a typical situation where the employer focuses on the mistakes and shortcomings of their employees and completely disregards any successes. Examples include fining employees for coming in late or docking their wages, viewing staying at work after office hours as a sign they have an issue with time management. Such approaches are extremely destructive, and kill employee motivation, meaning as soon as another opportunity outside the organisation arises, they are likely to take it.

Micromanagement

When an employer controls every step their employees take, little good will come of it. Even in organisations where micromanagement is applied fairly, a life being constantly monitored is extremely mentally draining. Employees will not be able to relax leading to burnout and a decrease in employee retention. This does not mean employers cannot keep track of their employees; they simply need to ensure employees do not notice the tracking, even though they are aware it is happening.

Asymmetric control

Employers must remain impartial and objective. If this issue is not addressed, employees will soon realise everyone is not viewed equally. Whilst such views may be correct, you must clearly understand the reasons for any decisions you make. These must be objective. The consequences for slipping up may be an unwelcome trip to an employment tribunal.

Control for control’s sake

Employers should keep in mind the reasons for employee monitoring. Whether that is increasing the company’s profitability or growing it, actions should be aimed at achieving those goals. Employers should not control employees simply because they can, and should always ask themselves: why are we doing this? What will it do for the company?

 

Data protection

Employees should not be subjected to monitoring without their informed consent first being obtained. There should be clear rules, rights, and expectations for both the business and its employees. This means providing the grounds for employee monitoring, carrying out GDPR impact assessments, and giving employees adequate advance information about potential monitoring, the type of monitoring, and uses of the collated information through monitoring must be identified by employers.

Employers must be mindful of data protection laws when installing employee monitoring software. The General Data Protection Regulations (GDPR) provide additional legal considerations for employers that must be followed. Employers cannot rely on employees giving their permission via data protection clauses in their employment contracts. The financial implications of breaching GDPR are likely to be substantial.

Under GDPR compliance, the processing of personal data must have a “specific, explicit and legitimate purpose.” A legitimate purpose may be safeguarding the security of personal data whilst employees are working remotely, for example, to ensure compliance with legal obligations or to guarantee an employee is undertaking their responsibilities as set out in their employment contract. After a legitimate purpose has been identified, employers must make sure any personal data that has been collected is only used and processed for that purpose.

Organisations must assess whether the collection of their employees’ data is “proportionate” to the purpose. GDPR states employers are permitted to analyse certain data in order to minimise personal data processing and data risks.

Employers also need to consider the legal grounds and reasoning behind data monitoring. Legal grounds may include:

• The processing of personal data through employee monitoring essential for the performance of the employment contract
• Monitoring necessary for compliance with an employer’s legal obligations
• For legitimate interests pursued by the employer, provided these are not overridden by the employees’ rights and freedoms.

 

Data protection impact assessment (DPIA)

In order to mitigate the potential risks of employee monitoring, employers should undertake a data protection impact assessment (DPIA). This determines the “nature, scope, context, and purposes of the data processing.” They must also assess the “necessity, proportionality and compliance” measures, identify risks to the individual, and how processing that data might mitigate those risks.

Failure to follow GDPR guidelines may lead to complaints or investigations from the Information Commissioners Officer (ICO), with could cause serious financial consequences. The ICO protects employees’ data rights and defines what organisations must do to safeguard them. It is not unheard of for employees to use micromanagement or covert surveillance to make a case for constructive unfair dismissal.

Because of the complex legal structure employers must navigate in order to covertly monitor their employees, it is better all round for employers to consider less invasive ways to monitor employee productivity without causing distrust amongst staff and potentially increased stress and anxiety.

 

Basic principles of employee monitoring

Employers adopt employee monitoring for many reasons, such as measuring productivity, tracking attendance, assessing behaviour, for security reasons and to capture proof of hours worked. When considering an approach to employee monitoring, keep in mind the following basic principles:

Transparency

Before committing to and implementing employee monitoring, employers should first discuss it with their staff. Consider alternatives first, such as apportioning work in progress on shared platforms, setting clearer goals and having regular updates and discussions with line managers. These could all be effective alternatives to staff surveillance methods.

Each employee should know the following:

• they are being monitored
• the tools/technology being used to achieve this
• key indicators for evaluating their performance
• any consequences arising from supervision (bonuses, sanctions, etc)

 

Predictability

Once you have opted for your approach to monitoring employees, stick to it. This will help to promote stability and certainty among workers. While the approach should be subject to regular review to identify and address potential issues.

Objectivity

The rules must be the same for everyone, and impartiality should be maintained at all times.

Effectiveness

If you go to the trouble of implementing a form of monitoring, ensure you have the procedures in place to review the information and take appropriate action in response where required.

 

Types of employee monitoring software

There are many different types of employee monitoring software available. Employers should consider the options in light of what would be appropriate for the workforce’s type of work and output. For example:

Online computer monitoring (real-time monitoring software)

This type of employee monitoring software allows employers to see what their employees are doing in real time, what websites they are visiting, and what apps they are using. Certain software applications may allow you to set alerts if particular employee violations occur, such as when an employee idles for a set period, for example. It may also include online broadcasts of employees’ desktop activity, employee time-tracking, detection of employee negligence, and violations of set rules.

Employee time-tracking

Time-tracking tools allow employers to monitor their employees’ work hours, or that of whole teams and departments. Working overtime, early leaves, lateness, absenteeism, coffee or smoking breaks, going out for a walk in the middle of the working day or during core hours, and any other distractions from work duties can be automatically recorded. Employee timesheet monitoring data can be visualised in graph or diagram form. Some software applications may also provide a productivity calendar, allowing employers to align work schedules and take into account employees’ annual leave, weekends, and business trips.

Employee productivity analysis

This monitoring software shows the amount of time employees dedicate to their work duties against the time wasted on generally idling or personal matters. Social networks, online games, messengers, smoking breaks and other things that take the employee away from the task at hand can be seen. Employee productivity monitoring, productivity analysis reporting, together with productivity metrics and a tool that measures productivity are all ways that employers can stay in control.

Employee computer screen recording

Computer screen recording allows employers to see any and all computer activity for any period of time. Websites visited and applications opened can be viewed and sorted by differing criteria, combined with a keystroke tracker, which makes it easy for employers to search for specific desktop activity for each employee. And records video of the employee’s activity whilst on their computer.

Employee violations monitoring

Violation filters trigger when certain listed programmes are started, listed websites are visited, or files with specific names are opened. Automatic notifications will notify both the employee and their line manager about the violation.

Employee productivity metrics

Tracking employee productivity at their desktops allows an employer to obtain and analyse behaviour traits and patterns of individual employees. Software typically provides analysis for different parts of the day, differing days of the week, and even during different seasons. This allows employers to identify peaks and troughs of employee engagement.

Remote PC access

Desktop control software allows remote administration of employees’ computers no matter what operating system is installed. It allows employers to configure programmes remotely, restore data, browse local files and logs, for example.

Keystroke tracker

Keystroke logging software analyses and records every key pressed on the employee’s keyboard during working hours.

 

Employee monitoring & employee morale

As well as the legal implications, employers also have to understand how monitoring will be received by employees. Will mutual trust and respect be undermined if monitoring is used to check up on employees’ behaviour? Will monitoring help or hinder healthy team working and performance?

The type of monitoring should also be proportionate and effective to the individual’s agreed performance measures and outputs.

It is for employers to gauge the right balance between trust and privacy, and managing risk through effective control and leadership.

 

Need assistance?

DavidsonMorris’ HR consultants provide specialist guidance to employers on all aspects of workforce management and engagement, including advice on the legal and HR considerations of employee monitoring. For expert support, contact us.

 

Employee monitoring FAQs

What are the types of employee monitoring?

The ability to analyse completed tasks between turning the computer on and off, monitoring telephone conversations, screenshots or video of desktops during working hours with the assistance of software solutions, presence of on-site video surveillance, are all different ways an employer can monitor employees.

Is employee monitoring legal?

The GDPR rules and the Data Protection Act 2018 do not prevent employers from monitoring employees. However, employers have a duty under the legislation to fully disclose any surveillance activity that takes place, the reason for the monitoring, and how the information gathered will be used.

What are the major types of control of employees in the workplace?

The major types of control used by most organisations include output control (focussing on measurable results), behavioural control (controlling the actions that lead to results) and clan control (this relies on shared values, expectations and traditions). Most companies use a mix of all three.

Last updated: 9 October 2021