HR Expert: Employee monitoring: What can we do?
An employee has approached my client, asking to work from home on a permanent basis. Whilst this did happen during lockdown, as soon as they were able, this particular client called everyone back into the office and they have stayed there since. However, my client acknowledges that home working is increasingly popular, and that there are advantages to be gained from it. They’re a little worried about productivity levels, and how focused a homeworker can be without their colleagues around them. Are they able to monitor this employee if they do allow them to switch to home working?

According to the latest CIPD research, over half of boss’ support employee monitoring, so you’re client is not alone in this. If this is the route they do go down, it’s important that they follow the Information Commissioner’s Office (ICO) guidance on employee monitoring, recently re-released in draft form as it is being updated.

What is monitoring at work?

Monitoring is when employers conduct checks on the quality and quantity of their employees’ work, as well as to safeguard health and safety and ensure that regulatory obligations are met. There is also a security aspect to monitoring, to protect company and personal data.

When monitoring becomes excessive, it can have an impact on data protection rights and individual freedoms, such as the right to privacy.

Draft ICO guidance on employee monitoring

On 12 October 2022, the ICO issued draft guidance on monitoring employees at work. This is part of the ICO’s drive to produce topic-specific guidance on employment practices, and how data protection rules are applied. This will replace the employment code of practice with guidance that is GDPR-focused.
Is the monitoring lawful?

For monitoring to be lawful it must a specific lawful basis, and what data is collected should be protected.
Which lawful basis to use will depend upon the purpose of the monitoring, and why it has been put in place. The ICO offer an interactive tool for employers to identify which one is applicable to them.

What should you client be aware of?

Based on ICO guidance and information from the CIPD, we suggest the following tips on how to go about monitoring this employee when (or if) they do work from home:

  • Your client must balance their needs against the level of intrusion on the employee. A data protection impact assessment could be used to do this.
  • They should be transparent about the fact they are monitoring, why they are doing it, and the extent of it. They should also consult with the employee to make sure what is measured is necessary and relevant to the employee’s role.
  • If the purpose of the monitoring changes, they should let the employee know.
  • They should also be aware of the cultural context that might arise; what’s acceptable in one setting, might not be in another, such as using a video camera for checking in with the employee.

Monitoring can have many benefits, but it is important that your client approaches this in a transparent manner. It is also worth reminding them that monitoring can be used to assess wellbeing levels, and that this is beneficial where there is no longer face to face contact with the employee, and it’s harder to check in.

 


 

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