18 March 2019 - Article
The first decade of the new millennium saw an increasing focus on the monitoring of employees. Over the next ten years this trend is likely to continue, but with increasingly sophisticated technological tools available, employers must not lose sight of the legal rules that limit what is permissible in this area.
While monitoring is more important to some businesses than others, the needs of an employer to consider the legality of their employees' activities, their efficiency at work, their health and safety, and the use and misuse of confidential information mean that most employers regard as necessary some form of monitoring. The key has always been a sensible and well-publicised monitoring policy.
The legal balancing act
There are many legitimate reasons for monitoring employees. These include:
- checking the quality and quantity of work
- preventing the unlawful or illicit use of confidential information
- ensuring compliance with legal or regulatory obligations or
- avoidance of harassment within the workplace.
However, monitoring an employee's activities is a potential interference with employee's rights, including the right to privacy and the right to expect trust and confidence between employer and employee. There is also specific legislation in this area, including the Regulation of Investigatory Powers Act, the Human Rights Act 1998 and the DataProtection Act 1998. This legislation forms the backdrop to any relevant policy.
The law recognises that employers may have legitimate business reasons to monitor their employees, but encourages them to do it in a proportionate way by weighing the effect on employees against the importance of the monitoring activity and finding a balance between the two. For example, they should use intermittent, rather than continuous, monitoring of internet usage. They are also expected to notify employees, through a well publicised policy, that they may or will be monitored, the frequency of monitoring and the methods the employer will use.
New challenges in the next decade
The available technology in this area has already left many policies looking outdated:
- A policy drawn up with email and the internet in mind may not work in a business whose employees use social networking technologies as part of their business practice as well as their social life. What kind of monitoring is going to be workable and acceptable in these businesses?
- Increasing numbers of employees work outside the office for substantial parts of the working week. Policies may need to include rules about the monitoring of employees' own personal hardware if employers are going to be confident that they can use spot checks to identify problems.
- A different approach may be needed for freelance workers and consultants.
- The rise of mobile phones with internet access coupled with wifi is creating a new headache for employers. Some report a worrying trend of employees buying their own private devices and plugging them into a private network at work, even hiding routers underneath their desks. These developments provide two interesting challenges. First, whether and how to monitor what employees do with such private devices and, secondly, security concerns if the employees use such devices for company work without adequate protection.
- Employers will soon be able to track exactly how and where an employee drives a company vehicle e.g. if they have broken the speed limit, driven erratically and uneconomically, as well as how long they have spent typing emails on a company BlackBerry. Such innovations will allow employers to monitor more accurately the effectiveness of employees. But how will employers manage the privacy issues that these innovations raise?
Is there such a thing as an all-singing, all-dancing monitoring policy for the next decade? No. With the pace of technological innovation showing no sign of slowing down, employers will need to keep overhauling their rules to make sure they are keeping up.