Supervision or Surveillance: Managing the Risks of Remote Working
Britton and Time Solicitors
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Data protection laws provide relief to many employers who monitor staff working remotely, as it gives their employees very few grounds to complain. However, I have been cautioning my employer clients for years that if they want to manage their workforce from afar that the law does not fully protect them.
It would be wonderful if every employee could commit 100% focus when working remotely, whilst maintaining their usual in-office productivity. But the reality is that people need to do their washing, dry their laundry, finish their food shopping and attend social engagements. These are all constant distractions that are impossible to fully dismiss.
It’s so easy for employees to think, “it’ll only take a minute” or “no one will notice if I just do this quickly…”
But what if someone did notice??
To start with, monitoring employees can be damaging to employee motivation. I often tell my employer clients to appreciate a balanced understanding of how to best deal with each homeworking situation, ensuring they don’t bulldozer in with spy cams and recording devices.?
All too often, I hear employees complain that they've lost their home/work-life balance when made to work remotely during the COVID-19 pandemic.?The ‘home office’ intrudes into the safety and relaxation of getting home after a day’s work and being able to unwind. No wonder employees protest when employers plan to monitor them with surveillance software, webcams and other monitoring tech.
Today, remote working presents my clients with real business challenges, as they want their employees to be productive and work when managers are not physically there to manage them.?
The evolution of software
A range of software providers have come to the market. These might seem like the “quick fix” for some, especially when the providers come with grandiose claims that surveillance software will improve productivity by tracking the hours employees spend at their computers and, more importantly, how long they spend doing nothing.
In some cases, the software will count keystrokes and even take snapshots from the computer screen, in some cases sending live webcam images too.
Monitoring employees that work remotely isn’t something new. My clients who have sales forces out in the field all week have used vehicle tracking for years. The only difference is businesses usually turn these off at the end of the day or no one is around to monitor them after 5pm.
In many ways, the new software is just an evolution of the car tracking concept. However, to many, it can be a lot more invasive because of the ‘in-home’ element.?
Communication is key
Among the most serious of my cases are the ones where employers do not mention the monitoring and surveillance techniques they deploy, nor how they plan to use or save the information they gather.
In a recent case, Barclays fell on the wrong side of the law, with a whistle-blower reporting them to the Information Commissioner's Office (ICO).?Although the ICO did not punish the bank, it did tell them to make improvements to ensure they were compliant moving forward and to look into the risk to individuals’ privacy rights.
Barclays did manage to dodge a bullet here, as the higher maximum fine can be as much as ￡17.5 million or 4% of the total annual worldwide turnover. However, it did not dodge the negative press which may dissuade consumers from using the bank for the foreseeable future.?
Due to the power imbalance in most workplace arrangements, the law may consider employees as vulnerable data subjects. Basically, if the monitoring is intrusive, alerting employees might not be enough to protect you from litigation, the ICO and hefty fines.
It’s true that I rarely see threats of litigation, and the chances of that ever happening is unlikely, but the reality is employees know where to go with their grievances. They’re only too happy these days to speak out on their experiences and ask the ICO to intervene.?
The salient piece of advice I give to my employer clients is to be transparent with their employees. If they decide to ignore my advice, then they may end up with employees who do not trust them, and eventually quit and leave for another job.
Clients often ask me to draft employment contracts that incorporate monitoring and surveillance clauses at the start of a new employment, as well as draft any associated policy documents. These include:
These are just the first steps in a sensible working relationship and ensure everyone knows where they stand from the start. This serves to protect my employer clients from complaints further down the road.
Change management is as important today as it was in the 90s. As an expert in employment law, I regularly tell my clients to consult with their employees before introducing new policies. Today, I go even further and advise clients to educate employees on home working and, importantly, how to best protect and preserve their family life and privacy.
The simplest of things like keeping the kids off-screen can eradicate any safeguarding concerns.
Principles, law and checklists:
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When I speak to my employer clients, I remind them that the data protection laws in the United Kingdom are a set of principles. They’re not a simple checklist that they you can go through and tick off one-by-one.
A simple question that I pose to my employer clients is to ask themselves “is it required?" If the answer is yes, then I pose the next question: “is it proportionate”?
With monitoring, the ICO states that you must complete a data protection impact assessment, as they class the activity of monitoring staff as a "high-risk" undertaking. The chances that the ICO will ask an employer to provide the impact assessment are practically non-existent, but being ready to hand it over is always a good idea.
In any event, the very act of going through the process will probably help to eliminate any risks in the first place.?
Ask yourself, is it proportionate to:
I think the answers are probably pretty obvious to most.?
But, in contrast, looking at a weekly report on how long someone spent logged into the system or even on a particular application would probably be proportionate, so long as you tell or consult the employee, or they contractually accept it.?
What employers must understand is that a lot of software already records time and activity, alongside providing inessential information which is likely to breach General Data Protection Regulation (GDPR).
I appreciate that workforce productivity data is becoming increasingly important as I am an employer too, but consideration should be given to how long that data is held on to and what purpose it holds to keep.
Remember, just because you can capture certain data doesn’t mean you should.
Regulation, regulation and more regulations
In the professional sphere, you need monitoring to ensure compliance is met. If you design your surveillance to maintain that compliance, then it will likely “fend off” the ICO, partially if the motive is to prevent crime.
Employers need to be aware of some working habits that work-from-home employees tend to pick up. Firstly, they are more likely to send copies of business emails to their personal email accounts for “safe storage” or “as a backup”.
This is a problem as the information in that email has left your control. Even if you were to switch off access to the work email account, the employee would still have access to that data, which effectively leaves your possession.
Secondly, they are prone to communicating with clients on platforms such as WhatsApp, iMessage, Teams and other instant communication apps, as well as sharing information in group chats with colleagues.
They are probably unaware that you can demand correspondence in all these platforms in an investigation, meaning you may end up disclosing data crossover from personal to professional.
The simplest point that employers should impress upon their workforce is that they should approach remote working as if they were still in the office.?If they send an email from their work account, then they must expect that you, as their employer, might read it.?
The employee and employer relationship is predominantly based on trust and in every employment contract, there is the implied term of mutual trust and confidence.?
Remember that you must be realistic and not overstep the mark.?
Treat your employees as you would want them to treat you and you shouldn’t be able to go far wrong. If all else fails, then Britton and Time Solicitors in Mayfair and Brighton are only a call away and always ready to advise.?
Paul Britton
Top Employment Law Firm, Britton and Time Solicitors.