While remote working has become commonplace, not all employers are keen on their employees being relatively unsupervised, and many want to closely monitor their remote workers. Some employers are investing in surveillance technology for this purpose, which involves a real risk of contravening individuals’ rights to privacy. An American company has recently come under fire in a Dutch case for a wrongful termination related to surveillance, and the question of surveillance of employees should still very much be on the radar of UK employers.
The Dutch case
A Dutch employee who worked remotely for an American firm was instructed to take part in a virtual training programme where he would need to spend the entire workday with his webcam activated and with screen-sharing turned on. When he challenged this as an invasion of his privacy, saying that he was not comfortable with it, he was fired for insubordination and a refusal to work.
The Dutch court ruled that the employee’s termination was not legally valid and was contrary to Article 8 of the European Convention of Human Rights. Specifically, the court held that such a demand, for the employee to have his camera remain activated throughout the day, was an unreasonable intrusion on his private life.
Relevant issues moving forward
Recent research shows that one in five companies has said that they either already have, or are planning to install, technology to monitor their staff. This can involve various forms of surveillance, from logging how much time is spent before messages are replied to, to secretly filming staff. It has been reported that this technology has gone as far as facial recognition software that alerts managers when their employees step away from their desks, even for short periods such as to make a drink or similar.
Although the practice of monitoring remote employees is legal so long as it complies with data protection laws, it is important for employers to conduct an impact assessment to ensure they are able to show a legitimate interest behind their monitoring processes and to demonstrate how the data obtained is to be used. As always employees should be notified in advance of the ways in which data will be collected and how it will be used, typically through a Privacy Notice. If done properly and with good reason, this can help employers to maintain a level of trust with their employees and to promote staff confidence by remaining transparent about any new processes they seek to implement. However, research by Skillcast has also shown that close to 60% of employees would not want to work for a company that uses software to monitor them, so employers intending to use such software will need to tread carefully to ensure that they do not unsettle their workforce unnecessarily, or worse, lose key talent as a result of any controversial changes.
Employers need to consider the problems they face and possible solutions carefully prior to implementing any new monitoring protocols, whether that relates to remote workers, or otherwise. Specifically:
- Ensure a policy is in place if such monitoring is truly necessary or is already being undertaken. This will help keep employees informed of how the company is operating its data processes and the reasons for it.
- Ensure a legitimate interest for processing this data is identified and relied upon prior to taking any steps toward closer surveillance, particularly to the extent this is not already covered by an existing privacy notice.
- Consider running periodic surveys to get employee feedback on any changes implemented and remain flexible to adjusting those procedures if necessary.
- Remain sensitive to the physical and mental wellbeing of employees and consider whether any reasonable adjustments need to be implemented in respect of those employees whose health and wellbeing is negatively impacted by any changes to the level of surveillance or for whom surveillance is more intrusive because of a disability.
These steps may protect employers from prospective grievances and future claims by ensuring full transparency, proceeding on the basis of a legitimate interest, responding to feedback accordingly, and offering flexibility to those who may need it. However, it appears that the general consensus is that close surveillance of employees will likely be met with resistance and an unhappy workforce. So, the key question will be whether such surveillance is really needed. If it is, it may be that the same outcome can be achieved by less intrusive means. Employers should be cautious of being too invasive as, with the current talent retention challenges in the modern workplace, taking drastic steps prematurely and unnecessarily may lead to the loss of key staff.
If you would like to discuss anything in this article, or would like guidance from an employment or data privacy perspective, please contact a member of our team.