Workplace surveillance is any form of employee monitoring undertaken by an employer. It includes time and attendance modules on HR or payroll systems, CCTV systems for security purposes, access to buildings or zones within a building and ongoing monitor of electronic systems such as computers, emails and search engines. Although surveillance methods have existed and been used for many years, monitoring has increased significantly as technology has developed.
During lockdown, when employees were suddenly working from home, employers increasingly asked their IT providers to assist with the monitoring of staff activity. For years, employers, despite the technical advances enabling employees to work from home, refused to allow them to do so. A multitude of excuses were provided, but at the heart of many of them was the issue of trust. How would I, as the employer, know that my staff were actually working and not catching up on their favourite daytime TV, or caring for their children?
As we are now in a post-Covid working environment and many employees have continued to work from home, the issue of surveillance moves from being a short-term worry, to a longer-term strategy. Questions arise regarding what is legal, what is ethical and what is effective people management practice?
‘Having to work with your camera on and your mic open all day everyday so your colleagues can see you would certainly be considered to be excessive’
One of the first notes of caution with any kind of surveillance is consistency.
You must have a documented policy which everyone is aware of, and which impacts all staff equally, regardless of whether they are homeworking or based in the office. Failure to do so could lead to claims of indirect discrimination. Do you have more women working from home then men? Do you have more older people working from home than working in the office? Do you have more disabled employees based at home rather than commuting to the office? While your policy and procedures around discrimination may not be intended to discriminate, without careful consideration of your particular workforce demographics, your policy may put you at risk of falling foul of equality legislation.
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Is monitoring my homeworking staff legal?
Assuming you are not doing anything which can lead to a claim of discrimination, as outlined above, you can monitor your staff, but only to the point that it is reasonable to do so.
There is no single piece of legislation which gives you a yes/no answer to the question of whether you can monitor your staff while they are working from home; however, there are several laws which must be taken into consideration when writing your policy and implementing it.
- The General Data Protection Regulation (GDPR) is in place to protect personal data
- The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 gives businesses the right to monitor communications on their own networks
- The Investigatory Powers Act 2016 addresses the interception of electronic data during transmission
- The European Convention on Human Rights protects an employee’s right to a family life
- The implied Term of Trust and Confidence (ITTC) which is implicit in a contract of employment
At the heart of whether your monitoring is legal are two key concepts:
Transparency
Are you being honest and open with your employees about the fact that you are monitoring your staff?
- What are you monitoring?
- How are you monitoring?
- What is being done with the information gathered?
- Who has access to it?
- Where it is being stored?
- And how long it will be stored for?
Proportionality
- What are you trying to achieve by monitoring your staff?
- How much information do you need?
- Is there a particular risk which has been identified?
- Are you using the information obtained from monitoring for training purposes?
Is monitoring homeworking staff an effective people management tool?
If used properly, monitoring can be used to measure employees’ inputs, outputs and behaviour to help them improve both individual and group performance. Companies may monitor company devices to ensure there is no breach of security, such as phishing emails, fraud or malware attacks.
In some cases, monitoring can be used to help prevent bullying and harassment, which saw a disappointing increase during lockdown as some staff were left isolated and exposed to inappropriate behaviour, without colleagues or managers to turn to.
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The results of monitoring can be used for disciplinary purposes where people are falling short of the standards set by the business or capability purposes when additional support mechanism can be put in place should the employee not be performing at the required level.
What is excessive monitoring?
It could be argued that due to remote working, evaluating performance and behaviour is more difficult for the employer. However, there are different monitoring styles, and while some are helpful to both parties, some can be regarded as excessive as they might be seen as compromising employee privacy. It is hard to imagine how monitoring keystrokes or taking screenshots at random intervals can give the employer an idea of how well the employee is performing.
Having to work on a live Teams call with your camera on and your mic open all day everyday so your colleagues can see you would certainly be considered to be excessive and demonstrate a lack of trust between employer and employee, but some employers have required this level of “engagement” from their home working staff. They argue that if the employee were in the office, then they would be visible and audible the whole time and therefore the same should apply when they are working from home. However, seeing into someone’s home could be considered an invasion of privacy.
Monitoring inputs can be misleading and inaccurate. They become about quantity, rather than quality. Focusing on outputs or deliverables should be far more useful for the employer and give them more meaningful information with which to make company decisions and provide support to their home working employees.
What’s the impact on staff if you monitor them?
While staff do not want to feel isolated, need to be part of a team to ensure effective working, and want to be seen and known to help their career development, they also want to be trusted and enabled to deliver in line with business requirements.
Trust and confidence are fundamental to monitoring your staff while they are working from home. Studies have reported a negative impact on psychological wellbeing and trust as a result of employee monitoring. This is due to decreased autonomy and can be regarded as a form of micromanaging, which can lead to increased exhaustion, lower levels of engagement and higher staff turnover.
How do I effectively support my staff without monitoring their every move?
While you may continue to monitor for IT security purposes, scanning emails, websites and external drives, you may want to consider what additional monitoring you really need and how you might best achieve it. The easy response isn’t always the best response. Blanket monitoring with red-flag analysis may be cost effective and time efficient, but does little for morale, trust and long-term performance.
If you are concerned about an employee’s performance or productivity, consider handling it individually first. This might include checking in regularly with the employee, and/or setting clear SMART objectives, which you can review at different intervals. It would involve understanding what the causes of poor performance are and whether this is related to being a homeworker or something else.
Can I monitor my staff while they are homeworking?
It is legal to monitor your staff, but doing so as a responsible employer is essential.
A clear company policy which is properly communicated is essential. This can be achieved by stating the reasons for monitoring, what data will be monitored and how data will be processed, getting employees to explicitly agree to these terms (this is vital for transparency and fairness) and making sure it is used proportionately.
You should also have a grievance policy that enables employees to raise concerns and have them independently assessed.
It is important to keep all of your policies and procedures reviewed on an annual basis to ensure they are still compliant with employment legislation, case law and best practice.
Donna Obstfeld is founder and HR specialist at HR practice DOHR
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