Is employee monitoring legal under employment law?

There are plenty of tools out there for monitoring employee performance, productivity, accountability and behaviour. But to what extent are these tools considered 'monitoring' of employees? And is employee monitoring legal under UK employment law?

Having monitoring tools as an employer doesn't automatically justify surveillance, and it doesn't guarantee effective management of personnel. Employers should place trust in their employees to perform their duties without fear of being excessively monitored in the workplace.

For employers, there are various risks to employee monitoring, including undermining trust, destroying a good professional working relationship between employers and employees, and creating a toxic working environment.

Monitoring can lead to increased stress and decreased job satisfaction among employees. In certain situations, monitoring could even potentially infringe upon the legal and human rights of employees. Employers have a duty of care to their staff, which also includes safeguarding their mental health.

While employers might perceive monitoring as a means to enhance productivity, lack of transparency in how monitoring is used can lead to reduced engagement and morale. It's very important that employers weigh up the benefits against the potential drawbacks, and ensure that monitoring practices align with legal and ethical standards.

Reasons for employee monitoring

Employers should have valid reasons for monitoring their employees, such as:

Remote working surveillance

If a company has a hybrid or fully remote working policy, employee monitoring tools can be helpful in supervising remote teams and ensuring work completion.

Measuring productivity

With the rise of remote work, tracking employee engagement and productivity has become more challenging. Monitoring software allows employers to assess employee productivity and project management efficiency.

Indicating performance

Real-time monitoring systems can identify employees who may not be meeting company expectations by analysing their activity and time usage, and highlighting work and non-work activities.

What kinds of employee monitoring are available?

Employee monitoring systems vary based on business needs. There are many monitoring tools that can help companies keep track of employee activities and processes, attendance tracking, behaviour and security. Common types of monitoring include:

Internet and app usage

Tracking software monitors employee computer activity, including websites and social media sites visited, application usage, and activity monitoring if a worker works remotely.

CCTV, screen capture and webcams

Employers can use CCTV, screen capture, or webcam monitoring to ensure productivity by viewing screen recordings or live feeds (although privacy considerations must be addressed).

Email monitoring

Monitoring employee emails helps resolve workplace issues and identify potential threats like insider threats or harassment. It also helps employers to see whether workers are using business emails for social use.

Phone tracking

Employers can monitor business phone usage through activity reports and screenshots to assess productivity and usage patterns.

Time tracking

Time tracking tools can indicate to employers how long tasks are taking, as well as clock-ins and clock-outs to manage workload efficiency.

Keystroke monitoring

This extreme form of monitoring records every keystroke made by an employee, using hardware or software-based systems.

Is employee monitoring legal in the UK?

Yes, employee monitoring is legal within UK employment law. That said, the Data Protection Act 2018 outlines six fundamental principles that employers must adhere to when monitoring their employees:

• Monitoring must be lawful, fair and transparent.
• The purpose of monitoring must be specified, explicit, and legitimate.
• Personal information collected through monitoring should be adequate, relevant, and not excessive.
• Any personal data accrued must be accurate, and kept up to date.
• Personal data shouldn't be kept for longer than necessary.
• Information gathered through monitoring must be kept secure.

To ensure compliance with data protection regulations and employee privacy, employers should clearly explain to employees what will be monitored, and why.

A defined and comprehensive policy on employee monitoring should be put in place (in consultation with employees and their representatives). Employers should also conduct an impact assessment before implementing monitoring to understand its implications. Where possible, any employer should avoid excessive monitoring and consider other ways to assess staff performance, such as training or performance reviews.

The Data Protection Act

UK GDPR is the same as EU GDPR, but UK GDPR includes the Data Protection Act. This legislation is important for establishing how companies can collect, store and use data. The legislation states that employers must not mishandle or exploit personal, raw data.

Examples of personal data include telephone numbers, email addresses and home addresses.

The UK law also includes six data processing principles. These highlight how employers can legally manage the data they collect.

Data processing principles are a set of strict rules that act as a guide to processing, collecting and accessing personal and sensitive data safely. These principles are different to the six lawful bases of data processing.

The principles employers must follow are as follows:

1. Are you using the monitoring on a lawful, fair and transparent basis?
2. Are you monitoring an employee for a specific purpose?
3. Have you been explicit about employee monitoring? Is it necessary and adequate?
4. Is the activity data you're monitoring accurate and up-to-date?
5. Are you monitoring employees for the necessary amount of time?
6. Are you monitoring employees securely and privately?

Compliance with these principles will ensure you administer employee monitoring tools lawfully as an employer.

The downside to employee monitoring

Employee monitoring is a highly contentious and controversial topic due to concerns over the collection of personal data and the toll it can take on workers' mental health and stress levels. Introducing workplace tracking may raise concerns among employees about potential violations of their human rights. (For instance, unintentional exposure of private health information through keystroke logging would constitute a breach of employee privacy). This can lead to feelings of mistrust and insecurity.

Excessive monitoring can lead to a breakdown of trust between employer and employee. Poor communication regarding the implementation of workplace tracking can result in a high level of stress among employees. Misunderstandings about the purpose and scope of monitoring may arise, causing worries about privacy and potentially damaging a business's reputation.

The greatest risk of monitoring is a data breach. Inadequate monitoring practices that do not comply with data protection laws pose a significant risk of data breaches or GDPR violations. Non-compliance can lead to monetary penalties and legal action. Businesses must have clear communication, transparency, and be compliant with data protection regulations when deciding to monitor employees.

We can advise on employee monitoring and GDPR

Wondering whether employee monitoring is right for your business?

Our professionals at Neathouse Partners can advise on whether tracking tools are suitable for your working environment. Get in touch about how we can support your business >