Barclays has hit the news headlines again recently for its use of employee monitoring software in its London headquarters in an attempt to monitor the productivity of its staff. The software used algorithms to analyse data and reveal work patterns by tracking when staff were at their desk or in certain computer applications. It would give tips to users to increase productivity such as muting telephone lines, emails, chat pop-ups and that users should avoid taking breaks that lasted more than 20 minutes. Despite Barclays’ assertion that the software was intended to tackle issues such as over-working, it scrapped the system due to “colleague feedback”.
This is not the first time that Barclays’ employment practices have come under scrutiny. In 2017, Barclays was criticised for using sensors to monitor the length of time employees were sitting at their desk.
These events have caused a back-lash from staff creating a reminder to all employers that, where they wish to monitor employees’ work activities, they must recognise the balance to be struck with employees’ right to privacy.
We don’t have clients approaching us about introducing the sort of monitoring technology that Barclays has attempted, but we have advised about the use of vehicle trackers to monitor how employees are driving, location software for the purposes of emergencies or work scheduling, and covert CCTV to establish if criminal activity is taking place within the working environment.
So what can an organisation do to legally monitor its staff?
The Law
Whilst an individual’s right to privacy and protection of personal data is protected by various legal frameworks including the Human Rights Act 1998 and data protection legislation, there is no UK legislation which specifically governs monitoring of employees or other workers apart from in relation to intercepting communications during transmission without lawful authority. Otherwise, employers are neither expressly permitted to monitor, nor are they prohibited from doing so.
Impact Assessments
Most types of monitoring will involve the processing of personal data and therefore if an employer does want to implement it then the Data Protection Act will be the main point of reference for ensuring that it is done properly.
The ICO recommends undertaking an impact assessment before introducing any monitoring system, and indeed this will be a legal requirement where it is likely to result in a high risk to individual’s rights and freedoms. Impact assessments should therefore be undertaken to enable employers to demonstrate that they have considered the purpose(s) for which they want to introduce monitoring, its impact on employees (and others), and whether there are any less intrusive means of achieving the same purpose. There is no obligation to involve employees in this assessment process but the employer may choose to do so.
Informing employees that they may be monitored
Employers are also required to fully inform employees about any monitoring other than in exceptional circumstances where covert monitoring can be justified. In this respect, employees must have a clear understanding of when information about, for example, their email/internet use or driving habits in the case of a vehicle tracker, will be obtained, why it is being obtained, how it will be used and who it will be disclosed to. This information could be in the form of a specific data privacy notice, or form part of an electronic communication policy for employees and or a driving at work policy as applicable.
Whilst some monitoring of employees will be necessary for business purposes, before implementing any new processes employers should consider the above and be able to evidence what they have done.
How can we help?
If you’d like more information or advice on the monitoring of employees including in relation to impact assessments or in relation to informing employees that they may be monitored then please contact a member our Employment and Pensions Team or call 0207 880 4263.
