Is workplace surveillance legal? Here’s what HR needs to know

It’s a question that many employers have faced as working from home becomes the norm for office workers – how can we make sure that staff are working productively outside of the office?

For some, the answer is measured in output, and the understanding that employees can be trusted to deliver the work they’re paid for, even when working from a home office or spare bedroom. But many businesses are going one step further, turning to technological solutions to ensure their staff are switched on when working remotely.

Research suggests that by the end of 2020 one in five employers were using software to remotely monitor their workers, or had plans to implement such technology in the near future. Surveillance programs on offer range from the relatively unintrusive, such as apps that monitor how long employees are active and online, to more invasive options. Tools such as TimeDoctor, Sneek, and StaffCop offer a range of surveillance opportunities, from monitoring keystrokes to taking automated screenshots to send to bosses and recording workers through their webcams.

Workplace surveillance: An ethical grey area

Advocates of tracking technology in the workplace argue that it simply resets us to office-based levels of monitoring. After all, your boss could easily glance at your screen or check that you’re at your desk when back in the open plan, and UK businesses currently lose billions of pounds per year to poor productivity.

For others, surveillance technology is an ethical grey area, harming the morale of employees and creating a disgruntled workforce who feel that they can’t be trusted. As people become increasingly preoccupied and aware of data privacy, many have also become concerned that surveillance technology could be a breach of employee rights.

“The use of programs to time employees and monitor their activity with screen tracking is currently legal,” says Data Privacy Expert Ray Walsh. “But it is also vital that employers strike a balance in accordance with human rights laws that allow employees a right to privacy… employers should seek to provide transparency over the use of surveillance to ensure that employees understand exactly how company policies are affecting their privacy.”

A risk of financial and reputational repercussions

In recent years, GDPR laws that set out how personal data can be collected and stored have changed what level of employee tracking is permissible in Europe.

Alfie Bright, an employment lawyer at Memery Crystal, points out that heightened awareness of data protection has led to high-profile cases where employers have been fined for recording details of their employees’ private lives. He adds that surveillance technology, when used improperly, could lead to significant financial and reputational repercussions for companies.

“Since GDPR was implemented, employers’ practices regarding the data privacy of their employees have been under greater scrutiny,” he says. “Continuous monitoring of particular individuals is only likely to be justifiable in rare circumstances, and employees should be given clear notification that surveillance technology is being used, and the reasons why.”

Outside of Europe, the rules around surveillance technology are less well-defined. For Alan Price, CEO of global HR technology platform Bright HR, it’s important to open up conversations about employee monitoring with staff, regardless of whether GDPR rules directly impact your business.

“It’s advisable that employers talk to individual employees about their concerns around monitoring,” he says. “Employees should be told that monitoring will take place before it happens, and employers need to let their staff know the ways in which monitoring will be carried out, when it will happen, and what communications will be monitored – for example, whether this will just apply to emails or telephone and video calls as well.”

What HR leaders and employers need to know

So what do you need to know if you’re considering implementing surveillance technology?

Crucially, laws and expectations around monitoring staff vary between regions, so HR bosses may wish to seek specific legal advice before implementing any new tracking systems.

For some, there will be no legal obligation for bosses to inform employees that they are tracking their work, but it is always considered best practice to do so. It’s also crucial to be aware of local data privacy laws, and to keep a keen eye on how personal data is tracked and stored.

Employers should also be prepared to justify why they are monitoring their staff. Choosing to single out select individuals for monitoring could lead to accusations of discrimination, so it’s important to have a valid reason if surveillance technology is only being used on specific staff members.

“Employers need to take into account some important considerations before monitoring staff,” says Kate Palmer, a HR Advice Director at Peninsula. “They need to have a fair, proportionate and legitimate reason to monitor employees. Typical reasons might be to ensure that employees carry out only professional activities during working hours, or to ensure that confidential or inappropriate content is not being sent out via email.

If a company is using new technologies or processing information that could result in a high risk to the rights and freedoms of individuals – including large scale processing of data or systematic monitoring of public areas – then they should carry out a data protection impact assessment to help them to identify the best way to comply with data protection obligations.”

As we all acclimatize to new ways of working remotely it’s inevitable that HR leaders will have to navigate difficult decisions – and whether or not to use surveillance technology will almost certainly be one of them. Laws around data privacy are still being rapidly reconfigured, and new technology that purports to boost productivity and provide new levels of oversight is being developed at an impressive speed.

As we adjust to life out of the office, employers will need to keep ahead of how best to utilize, encourage, and protect their remote workforce. When it comes to surveillance technology, acceptable use seems sure to remain a contentious and quickly evolving topic.