The Office for National Statistics recorded that 46.6% of employees performed at least some work from home in April 2020 during the first COVID-19-related lockdown.
Whilst the right to request flexible working (which can often include working from home) has been available since 30th June 2014, it has not always been the most popular option for employers who have been concerned that working from home might not be as beneficial as operating from the workplace.
Whilst many employers have adapted well to home working as a result of the changes necessitated by the impact of coronavirus, others have either continued to regard it with suspicion or have had genuine reasons to believe that their employees might not actually be working whilst they are based at home, leading to the introduction of monitoring systems. Now, with the light appearing at the end of the tunnel, including for a return to the normal workplace in some form, employers may be considering determining just how much work their employees have been performing from home so that they can take action in the near future.
Where an employer monitors its employees covertly, it does so at significant risk to itself, as it may not only be breaching its own data protection obligations, but (depending on the circumstances) also various aspects of employment legislation, the contractual duty of mutual trust and confidence between employer and employee that is implied into every contract of employment, and human rights.
So how can an employer monitor an employee whilst they are working at home? The following are important points to consider:-
- Determine precisely why you want to monitor your employees. For instance, if you do not have good reason to think that employees are shirking their responsibilities whilst working at home then, by implementing a monitoring policy, you risk fundamentally breaking the employer-employee relationship, perhaps permanently. Therefore, as part of understanding whether you actually need a monitoring system, you should determine whether any issues or concerns can be addressed in another way (i.e. is the employee not answering the telephone or responding to emails in a timely manner for a particular reason, such as caring commitments arising from the lockdown; could you establish a different model of working, even on a temporary basis, such as in the mornings and evenings; have you actually had conversations with the employee about this or are you just making assumptions, etc.?).
- Ensure that you are being proportionate in your approach. For instance, if you are only concerned about one employee or a small group of employees, then clearly applying this to all employees would be inappropriate and, rather than performing monitoring activities, it might be better to explore other approaches to this one employee, such as informal performance management, followed by a formal performance management process, if necessary. Likewise, if you are hoping to apply this approach to all employees, do not then focus on one employee who you feel may be problematic. No one likes being singled-out and, if you do that, you will place yourself at risk of claims such as breach of contract, constructive dismissal, unfair dismissal and discrimination (depending on the circumstances) to say nothing of claims relating to the employees data protection and human rights.
- Perform a data protection impact assessment on why it is necessary to perform such monitoring and why gathering such data is reasonable in the circumstances. It would also be important to consider whether you might breach an employee’s human rights (not least the right to respect for private and family life) in monitoring them.
- Inform your employees of what you are planning to do. This will need to be relatively detailed as you cannot simply state what you are considering monitoring them: you must go into the reasons why you wish to monitor them, how they will be monitored, how any data that you gather from this exercise will be stored and how it may be used. Additionally, just because you have informed the employees of these things, do not mistake this for their consent to being monitored as it very likely will not be.
- Do not try to hide what you are doing. Update the policies in your staff handbook, particularly your data protection policy, any relevant data privacy notices, your IT and communications policy, your disciplinary policy and any policies relating to monitoring and surveillance. Additionally, if all or parts of the staff handbook are contractual, then this may require the consent of the employees. If the staff handbook is non-contractual, you should still be informing the employees of important changes that are being made to it.
- Get specific and informed consent from your employees for any monitoring before you do anything else. Be mindful that, as a result of your discussions with your employees, the final scope of your monitoring activities may not be the same as you had originally planned.
This article is intended for information purposes only and not as a substitute for legal advice. TP Legal does not accept any responsibility for any decisions that you may make as a result of reading this article.