Does monitoring remote workers online bring out the best in them?

Electronic monitoring can carry legal risk.

Last week, a BBC article on electronic monitoring of home workers by companies spotlighted some extreme cases of monitoring employees who are working from home (WFH). Some of the practices reported might be rare, but monitoring emails, screen time and keystrokes are not.

One can understand the concern businesses have about the effect of WFH on productivity.[1] It’s understandable that employers are keen to measure these effects to inform return to work or hybrid working policies. However, many feel electronic monitoring can go too far. It can also carry legal risk. Risks employers don’t need to take given there are less intrusive ways to achieve the same results.

The key legal risks

• Data privacy: electronic forms of workplace surveillance involve the processing of personal data which is regulated by the UK GDPR and Data Protection Act 2018, which set out rules with which employers must comply. A failure to do so could lead to claims by affected employees or enforcement action and fines being imposed by the ICO, with adverse reputational consequences.
• Unfair and constructive dismissal: any dismissal which is carried out following surveillance of which the employee was not aware and has not consented to may be deemed unfair. Personal or invasive surveillance could well amount to a breach of the implied term of trust and confidence and give rise to a constructive dismissal claim.
• Reasonable adjustments: blanket monitoring often means treating everyone the same, while the duty to make reasonable adjustments requires a different approach for some. Get this wrong and the duty will be breached, and claims can follow.

A better way forward

• Whilst wanting to monitor and enhance productivity is a legitimate business aim, there are other ways to achieve this without relying on excessive surveillance.
• Staff who feel valued and empowered are the most productive. An open and supportive culture will encourage employees to maintain a dialogue with their supervisors about how they can achieve the best results.
• Implementing regular catch-up calls and self-reporting of productivity will foster mutual trust.
• What works for one employee will not necessarily work for another, so it’s important to tailor your approach where possible and to have an open dialogue with staff about it. The carrot here ought to be more effective than the stick.

How can Bates Wells help?

Our employment team are used to helping clients navigate these issues and can help review or write your return to work, hybrid working, or WFH policies; discuss your methods of implementation and how you go about performance management in the new world. They can also conduct a data privacy health check to make sure any monitoring you carry out is ok. All with the aim of achieving your goals and keeping you on the right side of the law, while at the same time maintaining that all important staff engagement.

You can also watch our on-demand webinar, Data protection and the challenges and pitfalls of online working, for more information.

[1] Chicago Booth Review, Are we really more productive working from home? (18 August 2021); Financial Times, Is working from home bad for productivity? (29 April 2021)