Oliver Allanach quoted by Compliance Week on risky practices around employee monitoring

Oliver Allanach, solicitor and employment law expert at Gordons has been quoted by Compliance Week discussing employee monitoring practices.

The story comes following news that the French data protection authority fined Amazon after it violated employees’ right to privacy.

Although monitoring employees is not prohibited, echoing guidance from the ICO, it is essential that it is justified, proportional and has a lawful basis. However, there are employees who adopt high risk practices in this area, leaving them facing significant enforcement action.

Commenting on the consequences, Oliver says: “Excessive monitoring can have an adverse impact on data protection rights as laid out in the UK General Data Protection Act (DPA) 2018 and UK General Data Protection Regulations (GDPR).

“It is also important to consider Article 8 of the Human Rights Act 1998 which concerns the right to respect for a private and family life. If employment tribunals find employers have breached this they can face significant repercussions.

“Other laws that can impact monitoring policies include the Equality Act 2010 if special category data and protected characteristics are within the scope of employee monitoring practices. If any monitoring is discriminatory, then employers can face heavy sanctions.”

What constitutes risky employee monitoring?

Although monitoring is not new, employers need to acknowledge how it fits in today’s working environments.

“It is important to remember that some level of employee monitoring is essential and there is a sliding scale on how it negatively impacts an employee’s right to privacy. However, it is a contentious topic that can bring significant material risk to employers.

“One common justification amongst employers to monitor their workforce is to monitor productivity, which has seen more focus since the widescale proliferation of remote and flexible working.”

Commenting on where employers engage in riskier practices around workforce monitoring, Oliver said: “Activities that can be deemed high risk include covert video recording, monitoring personal emails/internet use, using trackers and observing what employees are doing when working from home or even outside contracted hours.

“Monitoring communications between a worker and their union representative is also a high-risk practice.

“Today, employee tracking can also include monitoring employee’s social media activity during the recruitment phase or with issues such as confirming genuine sick leave. This can also be deemed as a high risk activity.”

Assessing monitoring practices

In today’s workplace, some level of workplace monitoring is essential and does indeed benefit employees and employers alike, but the context is important and must be considered.

Commenting on common reasons, Oliver said: “Examples include policy compliance, mandatory training, fire safety and security checks, crime prevention, handling contentious data and deterring inappropriate behaviour.

“Employee monitoring can be continual, ad hoc or in response to a specific incident or issue.

“These are all taken into account in considering whether it is overly intrusive or in breach of privacy laws as part of a data protection impact assessment. This is required in any sort of data processing likely to impact employees’ rights and personal freedoms, including the right to a degree of privacy at work.”

Keeping it legal

To help employers stay on the right side of the law around employee monitoring, Oliver recommends a pragmatic approach.

“When looking at the context and rationale behind a workplace monitoring tactic and the methods deployed, employers need to think carefully about what is acceptable.

“This means considering what type of monitoring is proportional against what employee activity insights you are hoping to gain.

“Additionally, employers should consider and deploy tactics in ascending order of intrusiveness. If there is a less intrusive method which will provide insights, this should be deployed first.

“Appropriate safeguards should be put in place to minimise intrusion. These could include limiting the times for keystroke monitoring, using trackers only during working hours and limiting who has access to the monitoring data and in what circumstances it can be accessed alongside robust security settings.

“Employers should also be cognisant of the impact of excessive monitoring on all employees. A heavy-handed monitoring policy leaving little privacy can undermine employee wellbeing.

“Covert activities and monitoring outside of contracted working hours are only warranted during the most extreme examples of workplace investigations. This is because it might be detrimental to the outcome of an investigation if an employee knew they were being monitored.”

You can read Oliver’s comments in Compliance Week here (payment required).

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