What is an employee’s right to privacy while working from home?

Since March 2020, many employers across the UK have implemented ‘remote’ or ‘home working’ arrangements to comply with government guidance during the COVID-19 pandemic. Harrison Drury’s employment law team, highlight for employers monitoring staff working from home, the importance in getting it right.

Many employers already had the necessary IT systems in place to facilitate home working before the COVID-19 pandemic, whilst for others it is totally new territory. Despite employees claiming they in fact work harder and over more hours in their home environment, many employers have concerns about maintaining motivation levels and productivity. This is becoming an even greater concern as the winter months and shorter days are closing in. For this reason, some employers may even consider it essential to monitor staff who are working from home to address these concerns.

What is employee monitoring?

With advancements in modern technology, there are now many ways employers can monitor staff who work from home. ‘Monitoring’ generally includes any activity concerning the supervision or observation of the workforce. The most common forms of monitoring include checking email content and internet and telephone use. There are also different levels of monitoring, which include:

• Non-specific spot checks to highlight which websites are visited and how often, the number of email messages sent or received, and calls sent or received.
• Specific spot checks on particular staff members to monitor the above.
• Content checks, which involves monitoring the content of calls or emails, either at random or directed at particular staff members.

In addition to the traditional forms of monitoring listed above, some employers have even implemented new ways of monitoring, for example, by way of surveillance apps or other programs.

The latest forms of monitoring include utilising software which automatically takes screenshots or observes staff through their device’s webcam. Further monitoring may be carried out using GPS tools to check the location of an employee’s device or recording a device’s idle time or how long certain software programs are kept open.

The question for many employers and employees is: how far is too far?

The employee’s right to privacy

When considering the implementation of employee monitoring, employers should be aware of the conflicting interests of the protection of company data and the employee’s right to respect for private and family life, which includes correspondence, as cited under Article 8 of the European Convention on Human Rights, which was incorporated into UK law by the Human Rights Act 1998.

The case of Bărbulescu v Romania (Application no. 61496/08) [2017] ECHR 742 offers a further indication as to how an employee may be protected. The Grand Chamber of the European Court of Human Rights considered whether the domestic courts failed to protect an employee’s right to private and family life. In summary, the employer had monitored the content of an employee’s email communications, which led to the employee’s dismissal in accordance with their IT policy.

However, the employee had not been informed of the extent of such monitoring. The Grand Chamber held that a fair balance between the interests of each party had not been struck and found that the employee’s Article 8 rights had been breached.

This case helps to provide guidance for employers in determining whether any monitoring of communications is proportionate. Ultimately, employers should contemplate whether the monitoring is really necessary for their business needs and, if so, then choose the least invasive form of monitoring to achieve their objectives.

Monitoring employees usually involves the processing of personal data and therefore, also engages the GDPR and the Data Protection Act 2018. Before implementing any form of monitoring, employers should ensure statutory rules regarding data use and protection are complied with (where relevant).

Whilst monitoring behaviour can be a justifiable way to manage productivity and reduce the risk of misconduct, employers should implement clear written policies and procedures to inform employees of monitoring practices, especially where advanced IT software is being used.

It is vital that employers provide notice of the possibility of monitoring to employees and details of what it will involve. The communications regarding proposed monitoring can be highly important, in order to get employees on board and avoid suspicion.

In addition, if an employer dismisses an employee following monitoring, of which the employee was not aware, the dismissal may be deemed unfair. If implementing targeted monitoring, employers should exercise caution, as targeting specific members of staff may also give rise to discrimination claims.

Maintaining trust and confidence in the workplace

Employers have an implied legal duty to maintain trust and confidence, which may be breached by disproportionate levels or methods of monitoring and could give rise to a grievance or claim for constructive dismissal. Research by the Chartered Institute of Personnel Development (CIPD) suggests that monitoring employees can damage trust between workers and their employer.

Employers are advised to be mindful of focusing too heavily on monitoring practices, such as the number of keystrokes or a device’s length of idle time, but rather, support employees by focusing on ways to encourage productivity, for example by checking in with staff on a daily basis to make sure they are coping at home. In turn, this will strengthen the relationship, build trust and confidence, whilst reducing the risk of mental health problems or burnout, which could lead to long term illness and other issues.

To seek further advice about managing and supporting your employees that are working from home or to discuss any employment related matters, please contact Harrison Drury’s employment law team on 01772 258321.