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Although lockdowns are being eased across the country, the trend of working from home does not seem to be fading. With this new normal, post-COVID world comes the added complication of employee surveillance. Where do employers draw the line?

While there has been a gradual movement towards flexible working patterns over the past few years, the pandemic has brought in a sea change in how we work almost overnight. The COVID-19 outbreak sparked a seismic shift towards working from home and forced organisations to consider their working practices in a world where employees couldn’t return to the office.

Millions of us have had to work from home at some point in the past 18 months. Data from the ONS shows that nearly half of people in employment in the UK worked from home in April 2020. Crucially, many businesses are now expecting to operate largely on a remote basis, even after lockdown restrictions are lifted.

With the ability to keep an eye on employees being hindered, the fear of declining productivity has led many employers to increase their employee surveillance systems. These surveillance methods have evolved as quickly as the need for home working developed, with companies offering monitoring software reporting a huge surge of interest in their products.

However, in the panic of keeping everything running smoothly, have business owners had time to consider whether their surveillance methods are morally right, or even legal? Employers will need to continue to assess their own practices in relation to surveillance, particularly if working from home is here to stay.

Workplace surveillance has always existed

For many, surveillance of some kind is not a new experience. Various white-collar jobs, such as law and accountancy, require employees to record their time so they can bill their clients. Sometimes the required recordings are down to the minute.

Other offices may have key cards or clock-in systems for flexible hours that track when you started the day and when you left work, while company phones also have monitoring possibilities built-in.

Away from the office, Amazon has been scrutinised about the treatment of its warehouse employees, with extreme surveillance in place. Networks of security cameras and hourly productivity goals for moving packages are present in many packaging plants, with well-documented timed toilet breaks.

Whether in the office or in the warehouse, worker surveillance has always been implemented with the aim of maximising the productivity of the employee. However, whether it works or not is another matter, with a Harvard Business report arguing needlessly monitoring employees can erode trust.

How surveillance has entered our homes

Now, the desire of business owners to track their employees has shifted to the home. Software companies that enable employers to track staff are all thriving. Some functionality includes being able to see when staff are sat at their desk, the amount of time they have been on the phone, the number of words written in an hour, and how many emails have been sent.

The most recent bit of kit that made headlines was a Microsoft 365 package which gives managers an overall rating of their team’s productivity. Again, similar tactics are used to track efficiency, like how fast people are typing and what they are looking at on their screens.

A California based company, Prodoscore, has seen a six-fold increase in sales since the start of the pandemic, according to The Sunday Times. Again, Prodoscore monitors emails, work documents, calendar appointments, and can even transcribe internet-based phone calls.

Other surveillance methods for prying eyes include Transparent Business, which sends screenshots from employee’s computer screens throughout the day to show their boss what they have been up to, and Time Doctor, which uses your work laptop camera to take a photo every 10 minutes to determine how often an employee is at their desk.

The negative effect of too much surveillance

Most business owners and managers will not have time to sit through 100 screenshots of an employee throughout the day, but that is not really the point of the software. While these software packages can measure almost anything in your working from home day, the purpose is essentially to instil fear so that employees continue to work.

However, this practice is having a negative effect on many employees. Cybersecurity firm, Kaspersky, points out that employees feel the need to work longer hours due to a new perceived necessity to remain visible to their manager.

Kaspersky carried out a survey of 2,000 full-time UK workers. They asked managers (38 per cent) and employees (62 per cent) about their new relationship with working from home and surveillance.

The initial findings were positive, with 80 per cent of managers saying they trust their employees to work from home, and 54 per cent of employees stating they feel trusted. However, a “presenteeism paradox” has formed over the past year due to new surveillance methods, where workers feel the need to remain “online” outside of their contracted hours.

In addition to this, they found that:

  • 19 per cent of employees admitted to using personal devices for work to avoid being watched
  • 37 per cent of employees with surveillance systems say their manager constantly checks in on them to ensure they are logged in
  • 25 per cent say they have worked harder from home when compared to the office
  • 40 per cent say they have worked harder after a monitoring system is installed on their laptop

Home surveillance is also altering work practices more generally. The survey found that employees are masking their behaviour and finding ways around the monitoring. Some of the responses to the survey said:

  • “I’ve sent certain messages over WhatsApp rather than forwarding emails, to not leave an audit trail.”
  • “To avoid being watched while chatting with co-workers, especially when talking about senior management, we text on our personal phones.”
  • “We all use WhatsApp for part of our role, but when talking at times about work, we now use code names/words.”

David Emm, principal security researcher at Kaspersky commented on the findings:

“Businesses need to realise that excessive employee surveillance is leading to unhealthy employee behaviours, with people feeling the need to work longer hours, and experiencing increased stress levels in their bid to keep up appearances.

It also creates issues from a security perspective, as employees using non-sanctioned personal devices for work tasks increases the vulnerability of corporate data and assets to hackers.”

What the law says

Because this is a relatively new and emerging working practice, there is no specific data protection legislation that addresses the issue of employee surveillance at home. There is, however, guidance within the Employment Practices Code issued by the Information Commissioner’s Office.

In addition to this, while there may be no specific home monitoring law, there are a number of domestic and European laws that have a say on the use and safe practice of surveillance technologies. For example, Article 8 of the European Convention on Human Rights states that individuals have a right to a private life.

There are significant data protection compliance risks that employers take if home surveillance policies are implemented without following the correct procedures. Under the relevant data legislation, any personal data (like emails or photos from a laptop camera) must be processed lawfully, fairly, and transparently. They must also only be collected for specified, explicit and legitimate purposes, and not further processed in a way that is incompatible with those purposes.

There has not been any case law in the European Court of Human Rights in relation to the extent to which the monitoring of employees in their home infringes upon reasonable expectations of privacy. However, given the sharp rise in employees working from home, it is more than likely there will be cases examining this in the near future.

Considerations for employers

As an employer, we understand you may still wish to install some sort of surveillance software onto your workforce’s laptops. Managing a workforce who are predominantly working from home does bring its own issues, and certain software products can ensure employees are as efficient as they would be within the office.

However, many companies will need to tread carefully in relation to how they implement the software. This is particularly true for companies that operate in a number of international jurisdictions.

Business owners should consider the following before implementing any surveillance software:

  1. Be transparent with your employees. Inform them of your intention to install monitoring software beforehand and provide the ability for questions.
  2. Ensure there is an appropriate lawful basis for monitoring employees. This may be increasing productivity or ensuring compliance throughout the workforce is met.
  3. Always act in a proportionate and justifiable manner and make sure there is no other reasonable option available.
  4. Work with an IT team to ensure that safeguards are put in place, such as password protection, encryption, and data protection.
  5. Be careful when choosing to limit monitoring to only certain employees. This could risk claims of discrimination.

How can Percy Hughes & Roberts help?

It is clear to see that working from home is part of the future roadmap for many businesses. However, with this way of working comes many complications that both employer and employee are having to manoeuvre.

Percy Hughes & Roberts can help business owners avoid any potential pitfalls in the new, post-COVID world. This includes advising your business on how best to set up employment policies that contain working from home procedures and any monitoring wording that might be needed.

At Percy Hughes & Roberts, our Head of Employment, Sarah Simcott, boasts years of experience and promises a confidential, friendly, and honest approach to all issues within the employment law field, particularly issues involving employment policies. If you have any questions regarding working from home and the difficulties that come with it, you can get in touch with us for expert advice. Get in touch with our Wirral Employment Law Lawyer today by calling 0151 666 9090 or by completing the “Get in touch” form on this site.

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