Three skyscrapers in London, vacant during the pandemic

As remote working becomes more prevalent, employers are looking for ways to maintain productivity, including monitoring their employees. However, this raises questions about the legality and ethics of such monitoring. While tracking can benefit employees in some ways, employers need to ensure that they are not breaching data protection laws and that any monitoring is proportionate and reasonable in relation to its purpose. Read on to learn more about this contentious and complex subject.

The Covid-19 pandemic left its mark in many ways.

One of its longest-lasting effects is the way in which it changed the UK’s business landscape – specifically its way of working – forever.

The popularisation of home and remote working offers employees greater flexibility and an enhanced work/life balance. But it’s not just the workers that benefit; employers see increased levels of productivity due to having a happier, healthier workforce, and their operational costs are lowered by reducing staff turnover.

However, not having employees physically present means that employers no longer have such visibility over the workload and output of their employees. In a YouGov survey, it was found that 20% of employers have implemented – or are planning to implement – online software to remotely monitor employees.

With continued remote working raising concerns about employee productivity, it appears that managers are increasing their level of surveillance of employees.

But is monitoring staff like this the right thing to do?

Most importantly, is monitoring staff lawful?

Let’s start with the basics.

How might employers track employees?

There are various ways that an employer might track or monitor an employee’s activity. That may involve checking login and logout times, ensuring employees are ‘active’ during their working hours, or insisting that webcams are turned on during meetings or throughout the work day. Monitoring can go much further, though. Examples of more intrusive methods include monitoring the volume of calls, the number of keystrokes, and the content of emails employees are sending.

The information obtained can then be used by employers to discipline or even remove staff who are not acting as they should. For example, the failure to log onto a monitoring app at the start of the day might work in the same way as an employee who is late for work.

For the most part, though, companies choose to track employee hours with the best of intentions. They generally want to maintain standards, not pry or micromanage. Some employers find that tracking time offers accountability and a sense of urgency, while others may like having insightful data about average task times.

What are the legal implications of tracking employees?

If you are monitoring employees or considering doing so, it’s important to consider the legal implications. Generally, remote work tracking has to follow the same legal guidance as in-office monitoring.

From a data protection angle, the ICO guidance says workers should be informed if monitoring is being carried out, including the specific and legitimate business reasons behind it. Employers should speak to employees if they intend to install monitoring software and ensure that their reasoning for doing so is reflected in any policies. To ensure you are keeping your employees informed, it’s important that you have your contracts, policies and handbooks drafted, or, at the very least, checked by legal professionals.

Drafting documents. Your handbook should make any monitoring clear

If an employer plans to monitor emails, then it’s important that they make employees aware they will be accessing their emails; why the information is being obtained; how the information is being used; and who it may be disclosed to, if anyone.

Ideally, you should have a clear statement in your contracts that explains the reasons for monitoring and forms part of your privacy notice. This should be kept up-to-date, and any home working policies should set out exactly how staff’s activities will be monitored.

In a recent case considered by the European Court of Human Rights (Barbulescu v Romania), an employee successfully argued that their right to a private life had been breached. Their reasoning was that their employer had failed to tell them about the extent of the monitoring. The employee had used his work account to send emails to his fiancee and, when confronted, had denied sending the emails. The employer proceeded to access the account and collect evidence of breaching company policy not to send personal emails.

The employer had failed to warn him that the content of his personal communications may be monitored, breaching European law.

In this example, significant damage was done to the employer’s finances and reputation – all for the sake of a few private emails.

Monitoring should, therefore, be proportional and reasonable in relation to its purpose.

Does monitoring benefit the employee?

Monitoring might be helpful in instances of checking up on employee wellbeing – such as monitoring the number of hours an employee is working. It could also highlight when an employee is struggling at home and needs some training to better perform their role.

A bright and airy home office can still hold plenty of distractions.

Work-from-home environments can also allow workers to become easily distracted, which can manifest in taking one too many coffee breaks, or dipping into extra-long internet browsing sessions.

When employees are aware that their activity is being monitored, they are more apt to manage their time in their home office environments in the same fashion as they would at a brick-and-mortar office. 

Finally, employee tracking software that breaks down the overall productive hours of each employee helps ensure workers remain focused on their tasks throughout each workday. This, in turn, allows for an overall boost in productivity, as employees can view their progress through the software or app, and set realistic daily goals.

Is monitoring employees a good business practice?

Some business leaders think of tracking employees’ time as a normal part of monitoring progress and efficiency, while others argue that such time tracking emphasises the wrong metrics. As with most performance management processes, the issue isn’t a clear-cut one. Whilst monitoring employees can be a useful exercise from a business perspective, it can also demonstrate a lack of trust in the employment relationship. Employees may feel they are not trusted if their calls are being tracked by management, especially if this hadn’t previously happened in the office environment.

An employee working away. Can tracking be a good thing?

A good way to think about the decision is like this: if, as an employer, you’re doing it because it will be of benefit to your workers, then go ahead. If you’re looking to use monitoring as an evaluation tool, proceed with caution.

If the evaluation will be used positively to help employees better manage their workloads, it could be useful. If monitoring is going to be used to demote them, it’s probably a bad idea. Finally, if an employer is looking to track their employees’ workdays in order to penalise them, then they should probably avoid it.

Ultimately, if the employer decides to go ahead with monitoring their employees, it is important that this is implemented in a proper fashion, and communicated effectively to employees.

As in all things, transparency is key.

For employers to facilitate strong relationships with employees going forwards, it is important to consider monitoring very carefully, and whether or not it is both reasonable and necessary.

It’s a tough question, with no right or wrong answer. Employers must carefully weigh everything from their business’s needs and the performance of their teams to their costs and culture fit.

If the company culture is all about flexibility, then choosing software that’s going to monitor the employees’ every keystroke is probably not the best idea. However, if an employer has been communicating for months about a slip in productivity and there hasn’t been meaningful improvement, there is both logic and precedent. In that case, the employer may have to opt for tracking even if it isn’t the choice they want to make culturally.

Before wholeheartedly adopting employee monitoring, it may be useful to explore other options. These other options might include proactive management of employees, where you check in with them regularly and give them clear targets to meet during the working day.

The bottom line is: monitoring and tracking employees during their working hours is legal but only if they’re told about it.

Tracking software can, when deployed appropriately, maintain productivity levels and assist with your team’s focus. But there is a danger it could reduce morale and impact their attitude towards you, their employer.

We all know workplaces are a delicate balance. Is implementing tracking software going to correct it or upset it?

Only you will know the answer.

Pam Loch
Pam Loch

Led by Pam Loch, Loch Associates Group are experts in developing solutions to help organisations manage and look after their people. With a team of employment solicitors and HR consultants in Kent, London and Sussex, they provide a unique combination of employment law, HR, wellbeing and mediation expertise.


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