Where do you draw the line? Overstepping data protection boundaries with employees

Employers who harness software to help manage productivity and other employee activity may find themselves inadvertently overstepping data protection regulations.

Electronic monitoring of employees has risen in tandem with the increase in home working triggered by the COVID-19 pandemic. While the number of people working from home has dropped from its peak of 49% during the 2020 lockdowns, most recent figures from the Office of National Statistics show that around 40% of working adults still work from home at least some of the time.

Before the pandemic, the figure was around 12.5%, and the dramatic shift has driven businesses and organisations into uncharted territory when it comes to managing their newly remote workforce. Many have addressed the challenge by increasing the use of electronic monitoring software to tackle what may be seen as a loosening of control.

New research from the Information Commissioner's Office, which oversees and regulates data protection and freedom of information in the UK, found that 19% of those surveyed believe an employer has monitored them.

When asked how they felt about being monitored, 70% of those surveyed by the ICO said they thought it was intrusive, and only 19% were comfortable taking a new job where an employer would be monitoring their activity.

This discomfort mirrors findings by the Trades Union Congress in 2022, which found significant and growing support among workers for stronger regulation of AI and tech-driven workplace surveillance. More than 70% said they believed technology-informed decision-making could increase unfair treatment. The TUC research found some sectors reporting very high levels of surveillance, at more than 70% across the financial industry and the wholesale and retail sectors.

"Developments in software have made a range of options available to employers, making it all too easy to implement a form of monitoring, whether to check if people start work on time or to monitor activity – such as through the number of keystrokes being made – but that ease of monitoring should not be taken for granted.

"Any monitoring has to comply with data protection law," explained Aimee Monks, Chartered Legal Executive specialing in Employment Law. "There's also the potential breakdown in trust and reputational damage that may come through implementing what employees may consider to be a surveillance culture."

To support organisations in ensuring that workers are monitored lawfully, transparently and fairly, the ICO has issued guidance for employers highlighting some of the key considerations. The privacy watchdog has also warned employers that it will take action if people's privacy is threatened.

Monitoring workers is only legally allowed if one of the six legal bases applies: consent, contract, legal obligation, vital interests, public tasks, or legitimate interests.

Aimee added: "Any surveillance needs to be measured against at least one of these criteria. However, if an employer wishes to rely upon the legal basis of consent, it may be problematic because of the imbalance in an employer/employee relationship and the ability to provide consent freely. In some circumstances, employees may feel they are putting their jobs at risk if they dispute a planned form of monitoring.

"The best approach is to ensure that any action undertaken is legal and that employees know what is happening and have a sense of trust. It's too easy for surveillance to feel like an invasion of privacy, whether or not it passes the legal test. Policies must also be reviewed and updated regularly to align with technological advances."

For comprehensive insights and expert guidance regarding employee monitoring and privacy concerns, we invite you to reach out to Aimee Monks and our Employment Legal team. You can contact us by phone on 023 8063 9311 or email us at enquiries@warnergoodman.co.uk.